Lawyers use a lot of tools and techniques to build their client’s divorce case, but one of the most useful (and sometimes most feared) is the discovery process. Discovery is so useful that some attorneys use it as a threat, as in “If you won’t accept this deal, we’re going to start DISCOVERY!”
What is discovery? Why are you supposed to be scared of it? How can this benefit you?
Discovery is an umbrella term used to refer to several different devices your divorce attorney may use to find out what information the opposing party has. Discovery includes: interrogatories, requests for production of documents, subpoenas, and depositions. I’ll briefly describe each below.
Why we have discovery
In general, American courts have adopted the theory that nobody should be surprised in court. Each party in a case should have ample opportunity to find out what evidence the other side has, so they’ll have an opportunity to either refute or explain it.
The real goal is to encourage people to settle. Allowing everybody to keep their evidence hidden until the day of trial will only further bog down the legal system as courts would be forced to handle even the simplest of cases. If everybody has access to the information the other side has, there is a better chance that the parties will be able to come to an agreement on their own.
“Interrogatories” is a fancy word to describe a set of questions a party to a lawsuit may require any other party to answer. The questions can ask for information about anything, within certain limits. Answers are generally due within 30 days, and the answering party must sign an oath swearing that their answers are accurate.
This is a great tool to use to define the issues in a case, or determine what other discovery needs to be made. The most common interrogatories are questions about employment history, what kind of investments the person has, what gifts he has made and received, where assets are located, and what property he would like to keep in the property division.
Other questions may be more painful. In some cases it may be appropriate to ask a person to provide the names and phone numbers of all the sexual partners they’ve had during the marriage, or to list the names of all the doctors they’ve seen about a mental illness, or for a list of their criminal charges, or anything else, depending on the grounds for your divorce.
Requests for production of documents
Some questions are best answered with copies of documents that most people have readily available. Parties may be asked to provide copies of income tax filings, bank statements, employment contracts, insurance policies, loan documents, deeds on property, and other such documents that would be used to determine the income and assets of the parties.
Sometimes this can be used to gain copies of other documents, like letters between lovers, recordings of phone messages, photographs, receipts, phone records, videos, and whatever else you may need to prove your case. Responding to this type of request can be pretty painful for the person who has been caught doing something wrong.
A subpoena is used to compel someone to appear at a hearing or deposition to give their testimony. The subpoena can also direct them to bring certain records or documents they may have in their possession.
Where interrogatories and requests for production of documents can only be served upon the parties to the case, a subpoena can be served upon just about anybody. This is very helpful if some third person has information that is important to your case, but isn’t necessarily willing to testify voluntarily.
This is probably the most powerful discovery technique. A deposition gives your attorney the opportunity to sit with your spouse (or just about anybody else) and ask questions. Follow-up questions can be asked until your lawyer is satisfied that he’s found all the information there is.
As with interrogatories, the questions can be about anything related to the case. Usually the entire deposition will be recorded and transcribed by a court reporter, but video taping depositions is starting to become common.
An attorney’s approach to a deposition can be very different depending on the purpose of the inquiry. Sometimes the questions are very neutral requests for information. Sometimes an attorney will try to goad the deponent into an outburst where he might give up information he meant to keep hidden.
Furthermore, a deposition can be used to preserve the testimony of someone who can’t come to court. For example, a doctor can’t be forced to come to a trial by subpoena. Otherwise many doctors would never be able to work because they’d be testifying all the time. It may be better to arrange for a deposition for a time that is convenient for the doctor, and record his testimony. The deposition can be used at trial, as if the doctor was testifying in person.
In any case, the testimony at the deposition will be sworn, just like testimony in court. This is perfect when dealing with someone who can’t stick to the same story, as an answer in court that is different than an answer in a deposition will expose the witness for the liar he is.
Depositions are very useful for not only the above reasons, but they allow your side to find out exactly what the other side’s testimony will be in court. If done properly, this will eliminate any surprises, which may help in settlement negotiations.
What you need to know
Discovery normally isn’t all that frightening. It can be time consuming. It can be frustrating, and sometimes a party will prefer to give up some of their demands and settle rather than answer some uncomfortable discovery questions.
How can it help you win? Discovery puts an end to a lot of the posturing and bluffing that would occur otherwise. Sometimes when answering your questions the other side will realize just how bad their situation really is. When used creatively and correctly, discovery leaves both sides with a clear idea where they stand in the case, and they should have a better idea how the judge is likely to rule.
However, there are many rules governing how discovery is to be conducted, how it is limited, and how it can be used at trial. If your case is going to require any amount of discovery on the opposing side, you’ll definitely need an experienced attorney on your side. Contact me for help. Nobody should try to navigate this area on their own.