Elmer McDuffy: Probate Lawyer Grantsville Utah

Utah probate law is complex. Seek the assistance of an experienced Grantsville Utah probate lawyer if you are having a probate dispute. Under Utah probate laws, all probate cases are referred to mediation before it goes to trial. If mediation is not possible the judge will direct that the case be heard and disposed off in court. The case will then go through trial. There are certain rules and principles the judge will follow while deciding the outcome of your case. These are thing which you as a layman will not be aware of. But an experienced Grantsville Utah probate lawyer will be aware of these and will use them for your benefit. Even if you lose your case in the probate court, an experienced Grantsville Utah probate lawyer can help you challenge the order of the probate court by filing an appeal in the appellate court.

The American legal system is based primarily on the common law tradition established in England. Common law is to be distinguished from statutory law in that it is based on legal custom and precedent. The influence of English common law in our American legal system goes back to colonial America, with its English laws, customs, and language. Two fundamental concepts, precedent and stare decisis, are associated with the common law tradition. Precedent is the example established in an earlier case decision that is followed by the courts in future cases that arise under similar circumstances. Stare decisis is the following by the court of a principle of law established previously. Understanding these two concepts will help amateur athletic administrators and coaches to avoid mistakes made in the past by other administrators and coaches which have been litigated in the courts.

The legal system in the United States is generally viewed as having three functions: (1) administering state and national laws, (2) resolving private civil suits among parties, and (3) interpreting the legislative intent of a law in deciding a case.

There are two basic legal systems in the United States: the federal system and the state system. Probate is part of the state system.

Generally, each of the fifty states has a three-tiered court system, with a trial court level, appellate level, and supreme court level of review. Each state judicial system hears cases and reviews the law, on the basis of its state constitution, state statutes, and court decisions. In addition, a state court must often interpret the federal constitution and/or federal statutes, in terms of how they impact on state criminal or civil laws that are reviewed under its jurisdiction. The structure of the state court system, in which the more important the court the fewer they are in number, is very similar to the federal court structure.

For many nonlawyers, the threat of a probate litigation, including the possibility of having to go to trial, is a very upsetting proposition, with the potential of great expense. However, with some basic information about how the trial system works, you will realize that dealing with the trial system is not so difficult after all. An executor of a will should follow these basic rules when there is a possibility of a lawsuit:

1. Consult an experienced Grantsville Utah probate lawyer. If some event occurs that may lead to litigation, inform them immediately so that they can take steps to protect estate.

2. In preparing for litigation, do not hide from your Utah probate attorney. Be honest and open about the facts of the case and be prepared to supply any information or records that are needed for trial.

3. Do not talk to outsiders, especially the media, about the pending litigation.

4. If possible, review any alternatives for possible settlement of the litigation before it goes to trial.

The steps in the trial system can be broken down into ten parts:

1. The complaint
2. The summons
3. The answer
4. Court jurisdiction
5. Discovery
6. The parties
7. The type of court
8. The trial
9. The judgment
10. The appeals process

The Complaint

The complaint, the initial pleading in a trial, is filed by the plaintiff in a civil case.

The Summons

When filing a complaint, the plaintiff must make sure that notice of the legal action being instituted against the defendant is served. The summons is the actual serving of notice. The plaintiff serves a summons on the defendant ordering the defendant to “answer” the charge by a certain date. Often the summons is served by a process server or officer of the court, such as a sheriff. Until a complaint is lawfully served to the defendant, a court has no jurisdiction to review the dispute.

The Answer

The answer is the defendant’s initial pleading on the alleged violation of the law. The defendant may deny or admit to the allegations made by the plaintiff and state his or her own facts about the matter in dispute. In some instances, a defendant may also file a counterclaim against the plaintiff, which essentially means the defendant admits no guilt and, in fact, has been injured by the plaintiff.

Court Jurisdiction

Two types of jurisdiction must be satisfied before a court can hear a case: personal and subject matter. Personal jurisdiction means that a court must have sufficient contact with the defendant to bring the defendant into its jurisdiction. Simply stated, the defendant must have some contact within the boundaries of that court’s jurisdiction to be eligible to be brought into it for a trial. Some criteria that would be considered by a court to establish personal jurisdiction would be residency, voter registration, driver’s license, or business activity. Subject matter jurisdiction means that the court must have authority to hear the subject matter that is being tried. All probate disputes are heard by probate courts.

Discovery

Discovery is a pretrial procedure by which each party to a lawsuit obtains facts and information about the case from the other parties in the case in order to assist the party’s preparation for trial. Discovery is designed to:

1. Discover facts and evidence concerning the case. It apprises the parties to the lawsuit of the nature of the claim to be litigated.

2. Bind the other party to a legal position. It is advantageous for the litigant to have the other party’s legal position clearly stated in advance, so as to anticipate what legal arguments are likely to be argued and what witnesses and evidence will be introduced at the trial.

3. Seek out weaknesses in the other party’s legal position.

4. Preserve testimony that may become unavailable at trial.

5. Narrow the issues in contention.

A party can ascertain information about the case being litigated from the other party to the lawsuit using a number of methods. The three most common discovery techniques are depositions, interrogatories, and requests for production of documents. A deposition is an out-of- court examination of a witness to a lawsuit, under oath, during which questions and answers are recorded by a notary public or court official. An interrogatory is a set of written questions sent by one party involved in a lawsuit to another party involved in the litigation. The questions must be answered under oath and must be returned within a specific period. A request for production of documents is a request by one party involved in a lawsuit to the other to produce and allow for the inspection of any designated documents. The documents produced must be returned within a specific period.

The Parties

The plaintiff is a person or party that initiates a legal action by bringing a lawsuit against another person or party. The defendant is the person or party against whom relief or recovery is sought in a legal action or lawsuit. The defendant does the defending or denying of the charges brought by the plaintiff.

The Type of Court

The trial court is the court of original jurisdiction where all issues are brought forth, argued, and decided on by either a judge or a jury. The appeals court is the court of review where issues decided at trial are reviewed for error. No new evidence or issues may be entered.

Trial

Pretrial motions are proposed by either side concerning any number of legalities–for example, a motion to dismiss. In a motion, one of the parties to the suit is attempting to gain a better strategic position for the upcoming trial, or trying to have certain procedural matters settled prior to trial. For instance, a defendant may try to make a motion to dismiss because of a lack of sufficient grounds for the suit. Often, a judge will hold a pretrial conference in the judge’s chambers in an effort to attempt to resolve the dispute or elements of the dispute before trial.
The state prosecutor in a criminal case or the plaintiff in a civil suit gives the opening statement to the court; then the defendant may do the same. The opening statement is designed to alert the triers of fact (either the judge or the jury, depending on the type of trial) to the nature of the case and to the types of evidence that will be presented during trial. Such statements set expectations and when delivered correctly can serve as the basis for a persuasive argument that will be presented during the trial.
After the opening statements have been made, the plaintiff (or the prosecutor) presents the case first. The plaintiff calls witnesses and examines them; the witnesses are cross-examined by the defendant (or the defense attorney), redirected by the plaintiff, and recrossed by the defendant. The defendant then repeats the whole process–that is, the defendant calls and examines witnesses, and these witnesses are cross-examined by the plaintiff. After the witnesses are redirected by the defendant and recrossed by the plaintiff, both parties are allowed to call rebuttal witnesses.

At the conclusion of the trial, the defendant (or defense attorney) gives a closing statement first. Then the plaintiff (or prosecutor) gives a closing statement.

The Judgment

After the closing statements, the court renders a decision.

n rendering a decision, the judge will often cite case law or statutes.

The Appeals Process

Many judgments by trial courts are appealed–that is, the party who lost the case requests that the trial proceedings be reviewed by a higher court in the hope that the decision will be reversed. Among the reasons allowed for an appeal are the following:

1. The plaintiff did not have an opportunity to state his or her case at trial.

2. Evidence was incorrectly allowed into or disallowed at the trial.

3. The judge interpreted the law incorrectly.

The party who takes an appeal from one court to another–the losing party at trial–is called the appellant. The party in a case against whom an appeal is taken–the winning party at trial–is called the appellee.
In an appeals procedure, no new jury, no new witnesses, and no new facts are allowed to be introduced. The basis for appeal is the record, which may include copies of the testimony, exhibits, and any other evidence introduced at trial. Attorneys for the appellant and the appellee may appear before the court, argue their cases, and submit briefs.

An appeals court may reverse (disagree with) a lower court’s ruling totally or in part. It may remand (return) the case back to the lower court for further proceeding, or it may affirm (agree with) the lower court’s decision. After a decision has been rendered, the case may be appealed again, to the State Supreme Court in case of a probate dispute.

Just because you know the court system in Utah and how it works, it doesn’t mean that you should fight your probate litigation without the assistance of an experienced Grantsville Utah probate lawyer. Utah probate law is a complex maze of rules and procedures. Attempting to navigate this complex maze without the assistance of an experienced Grantsville Utah probate lawyer can prove to be a costly mistake.