“And you say, well, who can you trust? I'll tell you, it's just nobody…”
-Cyndi Lauper, “Money Changes Everything” 1984
It will come as no big reveal when I tell you that couples (past or current) in court don’t feel they can rely on their soon to be ex. And, sad or not, judges often assume that both parties will be self-serving and may not be accurate reporters. Judges like to get things right when they issue a judgment. And for that, they need reliability and certainty. Discovery is the tool or set of tools you will need to use to give that to them.
After last week’s detour from discovery to one of my favorite topics of unbundled legal services, we’re back to the second part in our 4-part discovery series. This week I’ll be talking about discovery uses. In parts 3 and 4 in the weeks to follow, we’ll cover avoiding discovery abuses and the court’s role in discovery.
As discussed in part 1, “Discovery: the tool to know ‘what’s in your wallet?’, “discovery” is a legal term that refers to the process parties in a court case use to find information and potential evidence.
Discovery is also understood as a series of tools to get:
Family Law Discovery is a Series of Tools
These tools and the process to use them are a big deal. This is true both in terms of how much time, effort, and money (if you aren’t careful) discovery can take up AND because of the potential impact on cases when it is, and is not, done right.
Time: Discovery is the longest “phase of a case,” in that it starts (formally) on day 1 if either party uses “mandatory discovery” or are just on the ball and get discovery started right away. Theoretically, it doesn’t end until the ink is dry on the judgment. That's because there is a duty to “supplement” discovery either by revising answers any time facts change (for example account balance increases or reductions) AND to give updated documents (such as account statements).
Effort: Because family law cases involve the life of a marriage, relationship or child, there can be years of information to gather. To know what to request requires clarity: what are your key issues? what do you need to prove so the judge decides in your favor? You need to be specific enough so your request is obvious but general enough to get all the information you need.
Money: There are times where it’s helpful or even vital to have an expert work with you. They can only do their job if you get them the information they need. Asking for too much means you must wade through years of records -- a labor intensive job that will cost a lot of the lawyer has to do it, Asking for too little means that your expert may not be able to do their work and thus you wasted the money getting an expert.
Impact: Discovering vital records or locatin witnesses on important issues can make or break your case. A solid discovery plans sets your mediation or trial up for success. Failing to do enough discovery can lead to years of post-judgment litigation. For example, if you don't discovery an asset or identify substance use that impairs parenting abilities.
The way you and your partner/spouse/co-parent respond to discovery also impacts your outcome. Being evasive or sloppy would create a bad impression on the judge. Dishonest or refusal to produce information creates the appearance of dishonesty or hostility before the trial even starts. Breaking court the rules about discovery can also frustrate the judge -- who will be the one deciding your case.
So, given how important discovery can be to your case, what can you do?
Getting Started: Discovery is best focused on information you can’t access otherwise but need to prove your case. Start with what you want to see happen and work your way back to figure out your “elements of proof.” Then, fill in the proof you have for each fact or element. Look through your records, communications, photos etc. Think about who you know who may be able to give necessary information to the court. Consider also what your partner or spouse (current/former) or co-parent needs to prove.
Figure out what you’re trying to accomplish: are trying to prove or disprove a fact? Are you trying to establish that there is no proof? Do you need an expert opinion? It’s only when you know this that you can figure out which tool to use. You may also see that you only need the bare bones mandatory discovery.
Common Examples Where Document Requests Are Helpful:
Typically, document related requests are helpful to pinpoint assets and debts and events that have occurred. If your case involves the division of property, you can request records to show what you own, and how much it’s worth. If your case involves parenting issues, you can ask for documents that show who did which parenting tasks to establish the primary caregiver. In spousal support cases spending and earning records are vital. Even finding out that there is no record of something is important as it can rule out claims or provide defenses to positions.
Common Examples Where Questions Under Oath Are Beneficial:
Questions to get sworn answers work best if you are trying to figure out what the other party is asking for and why. If you are not sure where your spouse is coming from in their pleadings, you may want to ask questions in a “deposition” or in a written “requests to admit or deny” to get the answer. This information may reveal a settlement option if you can get underneath objections or positions. Answers to questions under oath carry more 'oomph' if you want to lock someone in to a position. Sworn answers can help you evaluate the strength or weakness of your and your partner/spouse/co-parent's case.
Common Examples Where Evaluations Are Valuable:
Evaluations are ideal for more subtle or complicated issues. This can be where the answer or proof doesn’t exist yet in an easy format that justifies a settlement or helps the judge at trial. One example is a home price, a company value or your earning capacity. Custody evaluations and substance abuse testing are additional examples that can turn your belief or a perspective into more compelling proof.
I hope this post helps you to start thinking about ways in which you can use existing tools to help put your case in a better position for your mediation or trial.
Come back next week to find out about how to avoid discovery abuses and the court’s role in discovery.