The Use of Forensic Document Examiners in Florida Will Contests

This article talks about using forensic document experts in Florida will contests. It discusses when to use them, what to consider when deciding to use them, and what they do. If there are claims of someone changing a will or destroying it, a forensic document expert can inspect the original will to see if it’s real. It’s important to decide early if you need one, and to keep their work confidential. When there’s a dispute about a will, the decision to use a handwriting expert often comes down to the strength of the witness testimony. The person challenging the will may claim it’s been tampered with or forged, while the person supporting the will will rely on witness testimony to prove it’s valid. In Florida, the person supporting the will has the initial burden to prove it’s valid, either through witness testimony or a self-proving affidavit. After that, the person challenging the will has to prove by a preponderance of the evidence that it should be revoked. Florida case law shows that when it comes to disputes over a will, the testimony of eyewitnesses is usually given more weight than the opinion of experts. However, if the eyewitness testimony is not convincing, then expert opinion alone might be enough to show that a will is a forgery. This is the same in courts outside of Florida as well. In some cases, the opinion of experts was not considered reliable if there were inconsistencies or contradictions in the eyewitness testimony, or if there were unusual things about the will itself. Two court cases, Succession of Block and Succession of Norton, show that a will can still be valid even if some pages have differences in margins, typeface, and staple holes. In both cases, the courts were persuaded by the testimony of regular people, not just experts. They found that the wills were valid because there was no evidence that they were different from the ones actually signed by the person who made the will. So, even if some pages of a will look different, it doesn’t necessarily mean the will is invalid. In Florida, will contests are usually decided by a judge, not a jury. This means that the judge may not always trust the opinions of expert witnesses. It’s important for lawyers to consider whether they need to hire a forensic document examiner (FDE) to help with their case. If the other side’s expert opinion is strong, it’s a good idea to hire an FDE to counter it. The use of expert testimony in court is governed by specific rules, and the expert’s opinion must be able to be applied to the evidence at trial. If the issue in a court case is really complicated, the judge can allow experts to testify. But if the issue is something the jurors can understand on their own, expert testimony might not be allowed. In a will contest, an expert can give their opinion on whether the will is valid or not. The trial court has a lot of power to decide if someone is qualified to be an expert and what they can testify about. There’s a debate about whether a certain kind of expert meets the requirements set by the U.S. Supreme Court. In Florida, the courts still use the Frye rule, which means expert evidence has to be accepted by the scientific community. If someone wants to find out about the other side’s experts, they can ask them questions in writing. This includes things like the expert’s job, how much they’re paid, and if they’ve been in court before. This is the start of expert discovery. Interrogatories are limited to 30 questions, and there’s no duty to update the answers unless the court says so. When it comes to expert opinions, it’s important to depose them for more details. You may have to pay the expert for their time in responding to questions. You should also consider videotaping the deposition because it’s likely to be document-heavy. During the deposition, ask about the expert’s qualifications, opinions, how they arrived at their opinions, their methodology, and any potential biases. An expert’s deposition can be taken before a trial, and their testimony can be used in court. If the expert is not going to testify at trial, there are limits on what information can be discovered. The courts have two types of protected information: the attorney’s thoughts and opinions, and factual information prepared for litigation. Factual information can be discovered if there is a good reason and it’s hard to get the same information without too much trouble. In Florida, the rules for expert discovery depend on whether the expert will testify at trial. If the expert won’t testify, their identity, opinions, and the facts they rely on are protected. The only exception is if there are exceptional circumstances that make it impossible to get the needed information any other way. In that case, the court might allow limited discovery. This is rare, and there are no known cases where it has happened in a will contest. If a lawyer is using an expert to help with a case, they need to make sure the expert doesn’t come to any solid conclusions until they have all the information. The expert should look at things like the original will and handwriting samples before making a final decision. The lawyer should also figure out if the expert can check the original will at the courthouse without telling the other side. They should also make sure the testing the expert wants to do won’t damage the will. In a Florida will contest, it’s important to be cautious when relying on expert opinions from Forensic Document Examiners (FDE). The courts place more importance on eyewitness testimony, especially if the alleged issues with the will are obvious. However, if there are doubts about the eyewitness testimony, expert opinions may be more convincing, especially if the will can be scientifically tested. It’s important for the lawyer to thoroughly investigate before the expert forms an opinion and to carefully question the opponent’s FDE. This information was written by legal professionals to help other lawyers and is being shared by the Real Property, Probate and Trust Law Section.

Source: https://www.floridabar.org/the-florida-bar-journal/the-use-of-forensic-document-examiners-in-florida-will-contests/