Discovery   

Discovery aka Disclosure

Tell Me About Disclosure

Interrogatories:.

“Interrogatories” are what lawyers call questions. Many questions. The Rules of Civil Procedure in effect in California say you can’t ask more than a fixed number of questions without the court’s permission (and yes, each subpart counts as one of the questions), but most courts grant the permission routinely.

How is normally works is that one spouse’s lawyer prepares a lengthy set of interrogatories and serves (gives to) them on the other spouse’s lawyer. In most states, the other spouse has 30 days to answer the interrogatories. People are routinely late answering interrogatories, so Motions to Compel are routine. (A Motion to Compel is a request that the judge order the other side to answer and return the interrogatories).

Most lawyers use pre-written interrogatories. That means they keep a standard form of interrogatories on word processors and adapt them as necessary. Whenever they get a tough question from an opposing lawyer, they add it to their standard form.

Only parties named in the lawsuit may be subject to Interrogatories.

Requests for the Production of Documents

This form of discover is basically what the name implies. These are requests that the other spouse provide some kind of “thing.” It could be a report, a tax return, a photograph, a tape recording, or any number of other documents. Just as lawyers use canned interrogatories, most use canned Requests for the Production of Documents.

Depositions:.

If the parties getting divorced are unable to work out their difference through other means of discovery their attorneys will resort to what is call a Deposition. The best divorce lawyers can use depositions to devastating advantage, simultaneously charming, disarming, and intimidating the opposing spouse, all while gathering crucial information for trial.

A deposition is when the lawyers get to ask questions of any witness and have them answered under oath, with a written record, made by a person called a court reporter. If the witness later says something different than what was said at the Deposition, the lawyer can point out the inconsistency, this is called impeachment. A deposition “locks in” a witness’s testimony so that it can’t change significantly. It’s also a chance for a lawyer to find out the strengths of the other side’s case and the weaknesses of their own case.

Depositions can get to be very expensive. A typical deposition of the opposing spouse, even in a relatively uncomplicated divorce, can run 3-4 hours. You can multiply that by your lawyer’s hourly rate, then double it for the other side’s hourly rate, then add $200 or so for the transcript. This adds up very quickly. In addition both parties may have to miss work to attend the deposition. This is a real good way to make a fairly affordable divorce become a financial drain, for both sides, very quickly.

Requests for Admission

Requests for Admission are used relatively rarely in divorce but can be effective. A Request for Admission basically says “Admit or deny that __________.” If the party fails to respond within the designated time period, usually 30 days or so, the statement is theoretically deemed admitted. We say theoretically because judges are notoriously reluctant to enforce the Rules of Civil Procedure when it comes to Requests for Admissions.

Is Discovery Really a Necessary Evil? :

You obviously need discovery when you and your spouse aren’t talking to each other except through your lawyers. In that case, the two of you have lost control of your divorce, it’s up to the lawyers to resolve it, and you just stand by and watch them work. And pay their bills. The more your are able to communicate with your spouse, the more money you will have at the end of the dissolution proceedings. If you think the two of you are heading for an adversarial trial. In that case, even if the two of you are talking with each other, your attorneys will need to use discovery. Your attorney will need to examine the other side to find out what your spouse knows, how your spouse will attack you, and how your spouse plans to defend against the charges you make. Not very nice, but needed if you’re heading toward an adversarial trial.

It is Possible to Keep the Price Down!

Sometimes you’re just stuck with discovery. Even if there’s no way around it, though, that doesn’t mean you can’t take some steps to stay in control of the process.

Insist that your attorney not send out any interrogatories or requests for production without letting you look them over first. Good lawyers will welcome your participation. We expect you to actively participate in the discovery. No one knows more about the facts of your case than you. Most of the real cost of dealing with discovery it not a result of preparing the questions. It is a result of gathering information and thinking through how to answer the questions. It flows from digesting and responding to the answers once you get them. The more that you can do to save your attorney time and effort the more money you will save. Of course, if you are unable to complete the discovery without our assistance we are more than happy to assist you in any way possible. But, remember the old maxim “time is money.” For example, read the questions, then write out rough answers. Don’t worry about legal form, that is what we are for. Gather all the requested documentation requested. We will help you sort out what is relevant and what is not needed.