I need somebody
(Help) not just anybody
(Help) you know I need someone, help

            -1965, “Help” by the Beatles

This is the final installment of our 4-part series on discovery in family law cases. In Part 1, Discovery: the tool you need to know “what’s in your wallet” we explained what discovery is and how it works. In Part 2, The Discovery Tools Available in Oregon Family Law Cases, we took a deeper dive into specific discovery tools and their possible use in your case. In Part 3, Discovery Abuses in Oregon Cases: What Not To Do, we talked about discovery abuses and common mistakes. 

In this post, we’ll explain the court’s role in discovery and other sources of discovery help for your family law case.

The Court's Role in Discovery

Judges and court can be intimidating. This is especially true if you are representing yourself. You're in unfamiliar territory, learning legal terms on the fly and figuring out the rules as you go. Oh yeah, and judges have real power over important areas of your life.

(If you're anxious, you're not alone. Not only do most people with cases feel that way, many lawyers share those feelings about trial and judges). 

It may help you to know that Oregon is blessed with some excellent judges. In fact, most judges we’ve seen are very good at working with people in court without a lawyer in their family law case.  The judge can’t give your legal advice but they can and will give general explanations about what's going on.

Likewise, while the judge must stay fair and impartial, they’re job is to help families get through their cases. It’s common in see Oregon family law judges patiently explaining what they’re doing, the rules they’re using and why they're making the decisions they are. 

TIP: Don’t take our word for it! Go to court and watch the judges in your courthouse. If your case is in a court that assigns a single judge to each case, make sure to watch that judge before you have any court dates in your case.

Discovery is an area where Judges can help. Discovery has its own set of rules and its the judges job to get involved when someone isn't following those  rules.  Besides, in our experiences, judges want parties to be able to get and give them the information they need to make good and fair decisions. 

Discovery rules apply to everyone – lawyers and self-represented parties. They even apply to people outside the case if they’ve been given a valid subpoena to provide information. 

If someone breaks those rules, aka "commits a discovery violation" or "abuses discovery" (when someone is using the rules improperly) you can bring the judge in by filing papers called a “motion.”

Common discovery motions are Motions to:

• Compel discovery
• Limit discovery
• Prevent discovery

And these can be followed up with a motion for sanctions if you win your discovery motion and your opponent doesn't follow the order.  (You can read about sections in last week's post)

 Examples where a Motion to Compel helps are where one side is:

• Hiding documents or evidence
• Destroying documents or other Evidence
• “Stonewalling” discovery by responding late or not at all
• Giving partial documents or responses
• Denying they have information or documents that they do

If you file your motion to compel there'll be  hearing where you can tell the judge what's be going on and what you need. If the judge agrees, s/he'll give an order to your opponent in writing to try to fix the problem.

You could find yourself in a spot where your opponent isn’t breaking the rules strictly speaking but they’re abusing them. This actually is a violation because of the “relevance” requirement we discussed  Part 2, The Discovery Tools Available in Oregon Family Law Cases, 

To fix this, you can ask the judge to give you a “protective order.” The protection can include an order that:

• Limits the length of time covered by requests
• Limits or strike entire requests if not within the proper scope of discovery
• Imposes conditions such as confidentiality
• Extends the time periods for a response (if raised before the time is up)
• Shifts the costs of getting the information to the party asking for it
• Supports objections one side makes to a request

Other Help

Sometimes, the help you need isn’t because your opponent did something wrong.It may be that you just need help figuring out:

• what discovery to get
• which tool to use to get it
• how to get information that isn't neatly put in as document
• what to do with the discovery you have
• or even, whether your opponent is breaking the rules/what you should do about it

As of the writing of this post, there aren’t a lot of discovery materials for self-represented litigants from the State (the “Oregon Judicial Department”). There are a few mentions of discovery that added up is about a paragraph. And one mention even talks about tools you can’t actually use. The only OJD forms we found online are for the mandatory discovery notice and lawyer appearance/withdrawal forms. 

The Oregon Bar Association does have a series of helpful books called, “Bar Books.” These include discovery topics.  You may be able to see  these by going to your courthouse’s law library.  But be warned: they’re written by lawyers and judges for lawyers and judges. This means they’re filled with legal terms and are written at a law school grade level.

So then, where you can get discovery help if you aren’t being represented by a lawyer?!

 This is where “unbundled” or “limited scope” legal services come in and really help. 

(For more about how “unbundled” or “limited scope” legal services work, check out this article)

A limited scope lawyer   can help you with discovery in whatever way you both decide works. Examples of how limited scope discovery legal services could help you include:

• Education about discovery tools and how/where/when and why to use them
• Designing a discovery plan tailored to your case and the issues in it
• Creating discovery requests and responses
• Reviewing discovery requests for you before you send them out
• Going over the responses you get from your opponent to make sure you got what you needed and what to do if you didn't
• Helping you respond to requests your opponent makes especially if you need to object or get a protective order
• Taking depositions (which turns sworn testimony into evidence)
• Defending your deposition if your opponent wants to depose you
• Preparing discovery motions and orders (the order you want to get)
• Preparing for any discovery hearings to help you get organized and practice

Every lawyer has their own approach-- to working cases and handling discovery. Limited scope attorneys do too, including  how they help you with discovery. Make sure you ask for what you want and are clear about who is going to do what.

At Rogue Family Law, we think it all starts with lowering the walls you face in representing yourself. For us, this starts with educating you about the nuts and bolts. We have:

• an online discovery course you can take from the comfort of your home or office to unlock the mystery and gain access to the power of discovery
• discovery "workflows" so you can create requests and respond to ones you get
• consulting sessions so you can talk over the bigger picture or just get your questions answered throughout discovery and your case

Included in your enrollment in the Discovery Course are Discovery Workflows that take the guesswork out of what you need.  The Discovery Workflows let you create tailored and court-ready discovery requests AND responses. (Like all our workflows, they avoid the problem of trying to figure out what to fill in on standard forms that may not fit your case, even if there were State Discovery Forms available).

(If you aren’t familiar with the Rogue Family Law Document Portal, click here for a video explaining them)

Because every case is different (including the issues, the parties and the proof), the discovery you need will be unique to your case. The evidence you need in your divorce or family law case is out there. Discovery is the way to get it. Whether you work with us, another limited scope lawyer or use the OJD website, you can get the help you need to avoid  going to trial unprepared. By doing that, you can avoid getting a bad decision because you didn’t get the evidence the judge needed to give you the decision(s) you wanted.

We hope this post and the others in the series will help you use discovery to get your best outcome. 

After all, that's what discovery is all about.

And if you’d like one-on-one help from a Rogue Family Law attorney, tap or click here to apply.