July, 2003

Discovery

(Part 4 of a 6 Part Series on Divorce Procedure)

If you've been following this series on divorce procedure (and how could you not?) then you're familiar with our case-study of Wendy Wife v. Henry Husband.  So far, Wendy has filed a Complaint for Divorce (see the April, 2003 issue of the newsletter); Henry has filed his Answer and Counterclaim (May); and there has been a motion for temporary orders (June).  Now it's time to begin the Discovery process.   Since this is an important part of litigation, I'll take up a little more space in here covering it. (That means less cartoons - Sorry.)

The purpose of Discovery is allow both parties to find out (or "discover" if you will) something about the other one.  Usually you are searching for financial information, such as how much he earns or what her pension is worth.  But you can also use Discovery to find out other tidbits of information, such as whether he's using drugs, or who she's having an affair with. 

You may wonder why a spouse would have to engage in formal discovery on their partner.  Wouldn't they already know this information?  Maybe.  But even if you know it, that is different than proving it in court.  In addition to finding out certain information, Discovery also allows you to collect evidence in a form suitable for presenting to the court.  Therefore, instead of telling the judge that your X2B can afford to pay you alimony because "he's loaded," you can submit bank statements and pay stubs to show exactly what his financial position is.

So what types of Discovery are there?  There are a number of them, but the "Big 3" are (1) Requests to Produce; (2) Interrogatories; and (3) Depositions.  A Request for Production is exactly what it sounds like in that you are requesting (demanding really) the other party to provide you with certain documents or other things, or the ability to enter their land and inspect something on their property. 

Now here's the good news.  There is a court rule (look to your right) that provides a list of documents each party has to provide to the other.  This list is pretty comprehensive, so most, if not all of your documentary discovery can be accomplished by simply invoking this rule.

This means you may be able to skip the Requests for Production and move to our second form of discovery: Interrogatories.  Here you are allowed to handcuff your spouses to a chair, shine a bright light in their face, and ask the same questions over and over until they break down and confess all their wrongdoings.  Not really, but it sounds kind of cool.

Actually, Interrogatories are nothing more than a written list of questions that your X2B has to answer under oath.  In my opinion they are limited in their usefulness for two reasons.  One is that you can only ask 30 questions.  Any more than that and you need to get the Court's permission.  Two is that rarely do you find the smoking gun in the answers to these questions.  The other side has all the time in the world and an attorney helping him what to say.

Much more "on the spot" is the Deposition.  This is where your X2B has to answer questions live and under oath.  It's done in the presence of a stenographer who records everything that is said.  There is no time for him to "prepare" an answer and there is no limit per se as to the number of questions you can ask.  But if you are conducting a Deposition, make sure you have all your questions prepared in advance.  You aren't likely going to get a second chance to depose someone just because you forget to ask them something.

I think the most important part of discovery is to get the answers to your questions before you ask them during the trial.  You do not want to ask a hostile witness a question during the trial unless you know what he is going to say, or unless you can prove he's lying with this or that document or with this or that statement he made under oath during a deposition.