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WHAT IS DISCOVERY?

 By Ruth Miller

"Discovery" is what makes real-life practice of law different from television dramas. Nothing in the law happens suddenly, and very little happens by surprise. Your lawyer has the right to ask your spouse about everything related to the case. That means just about everything in the area of finances and issues related to custody of your children. Included in discovery are subpoenas, interrogatories, requests for production of documents, and depositions.

There are ways to keep costs down during discovery. Sometimes one of the spouses will monopolize the financial information of the parties and the other spouse will know little or nothing about their assets and liabilities. However, it is far more common that each spouse has substantial knowledge. Since a major portion of the lawyer's job is to collect and marshall information, your lawyer's time is best (and most economically) spent when you provide your lawyer with every bit of relevant information you can.

Informal discovery involves counsel exchanging information voluntarily or upon request. This method is far less expensive than formal discovery. Your lawyer will simply prepare a list of documents that are important, and ask the other lawyer for them. Be prepared to have your spouse's lawyer ask you for a multitude of documents also. Be sure to cooperate in this request. It will save you money.

Formal discovery involves interrogatories and requests for production of documents. Interrogatories are an inexpensive method of gaining information and narrowing issues. Either of you may send the other formal written questions which must be answered under oath within 30 days of their service. If interrogatories are served upon you and you don't respond, your spouse can obtain a court order to force you to respond. This is expensive and a foolish waste of money, so make sure you and your lawyer answer the questions completely.

Another method in the formal process of discovery involves requests for production of documents. Either of you can ask the other to produce any and all documents having anything to do with the dissolution (or divorce) and its related matters. That is, anything to do with support, community (or marital) property, separate property, the children, or any other matter that can be decided by the Court. This is not a great deal different from the informal method, but like interrogatories, if there is no response, it can lead to court orders, sanctions, possible jail time and a big waste of money.

The most common type of discovery is called a "deposition" whereby your lawyer talks to your spouse. A deposition is a duplication of a court proceeding without a judge. Your lawyer may ask questions of your spouse (and your spouse's lawyer can ask you questions) in a setting in which the questions and answers are recorded by a certified shorthand reporter and later bound into a permanent volume.

Depositions have several functions. First, they narrow the issues so that your lawyer can find out exactly your spouse's position on various matters. For example, if you and your spouse agree that your grandmother's furniture is your separate property, that issue can be eliminated. If not, and you are trying to preserve that furniture as your separate property, your lawyer must ask your spouse the basis of his/her opinion: If there are any receipts to prove the furniture is community (or marital), when he/she first saw the furniture, if the two of you ever had any conversations concerning the status of the furniture, and many other questions. By eliminating issues in this way you are "narrowing the issues" which saves money!

Second, depositions tend to "freeze" testimony from deposition to trial. That is - if a party testifies one way at a deposition, and another way at a trial, it is unlikely that the judge will believe anything the person says. So each spouse is "stuck" with his/her deposition testimony.

Third, a deposition is very useful in helping the lawyer determine how effective your spouse is likely to be in court. And, finally, if the assets, liabilities and income are very complex, a deposition is essential to educate the lawyers.

You have the right to be present at your spouse's deposition and should plan to do so, unless your lawyer advises you that it would be counterproductive. If your spouse won't answer the question, your lawyer will ask the court reporter to "certify" the question, and then ask the judge to order him/her to answer. If the judge makes that order and if he/she still refuses to answer, there are many remedies. A fine or jail sentence is possible, but what is most effective is to "strike the pleadings" of the other spouse. Then he/she has no rights before the court.

If your spouse is lying, it is clearly to your advantage if you can prove it. In fact, if you can prove that only part of his/her testimony is not truthful, you are probably going to be the prevailing party on contested issues/ Many people lie and cheat in the world, but they are generally unsuccessful in getting the court system to help them. Judges are quite experienced in judging a person's credibility and know when witnesses are lying. The foundation of our legal system assumes that people tell the truth when they come to court, so judges react very negatively to witnesses who lie.

The deposition process is an ordeal, but the following instructions, commonly provided by attorneys to their clients, can lessen the stress:

1. Tell the truth. You must, you are under oath. However, do not depreciate yourself. For example, if you genuinely believe you are unable to work long hours of overtime, then the answer "Yes" to the question, "You really are able to work overtime, aren't you?" would not be the truth.

2. Don't guess. If you don't know the answer or if you can't remember. Say so! Nobody is going to think you are stupid if you can't remember something. Most of us can remember only life milestones, not day-to-day trivia. The deposition "freezes" your testimony, so a wrong guess can be disastrous.

3. Answer only the question: don't run on at the mouth. A deposition is very expensive! Extra words create extra expense. If you can answer a question with ten words, do not use one hundred. However, you are not limited to a "yes" or "no" answer.

4. Don't volunteer information. You are not obligated to do so, and if you do, it could be damaging to your case. Just wait for the question, answer the question, and then wait for another question.

5. Don't try to convince the other side of the merits of your case. You won't be able to do it, and you will find yourself caught in a web. Besides, it really doesn't matter whether the other side likes you or not. You can never help yourself at a deposition, only hurt yourself. So just answer the questions.

6. Can my mother/friend/therapist be present? The law in this area is not clear. However, most lawyers will allow other persons to be present if the request is reasonable and if there is enough space in the room. This is especially true with your own deposition as opposed to your spouse's deposition.

Posted on Saturday, February 24, 2007 at 01:34PM by Registered CommenterSite Administrator in | Comments Off

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