Saturday, January 12, 2008

Divorce, Between The Provisional Hearing and The Final Hearing: Discovery

Finally following up on my Basic Indiana Divorce Law and The Provisional Hearing posts.

After the provisional hearing comes preparation for the Final Hearing. Lawyers do this through the process called discovery. We want to discover the following:

  1. Where are the real disputes between the parties.
  2. What are the facts supporting the other side's case.
  3. What facts does the other side have that hurt our case.
The Alabama Family Law Blog has a pretty good description of the process in the post Discovering Hidden Assets:
In your divorce case, you may hear your lawyer talk about the "discovery process." Discovery is essentially the legal process by which lawyers can obtain information necessary for your case (such as assets, debts, income, and other factual information). This often will involve written requests to your spouse to produce certain documents, a request for them to file written answers to the lawyer's written questions (called interrogatories), subpoenas for documents from banks, credit card companies, etc.
Indiana's Rules of Trial Procedure control the discovery process. Specifically, Rules 26 - 37 contain everything about the discovery process:

26 General provisions governing discovery
27 Depositions before action or pending appeal

28 Persons before whom depositions may be taken; discovery across state lines; before administrative agencies; and after judgment
29 Stipulations regarding discovery procedure
30 Depositions Upon Oral Examination
31 Deposition of witnesses upon written questions
32 Use of depositions in court proceedings
33 Interrogatories to Parties
34 Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes
35 Physical and mental examination of persons
36 Requests for admission
37 Failure to make or cooperate in discovery: Sanctions

I firmly believe that discovery increases the cost of divorce litigation. I wrote about why this is so here. Here I want to mention a few, more points specific to the discovery phase. Clients do not know why they must give up this information and that can lead to a court order compelling discovery and that adds to costs. Some attorneys refuse to do anything but formal discovery; which may be due to their basing their fees on an hourly rate (see my article, Flat Fees, to get an idea about the differences between flat rate and hourly rates). With some attorneys no one wants anything to do but formal discovery. Some clients play discovery games as much as some attorneys. The Minnesota Divorce and Family Law Blog has a good article, Formal Discovery Versus Informal Discovery, on the the subject of informal and formal discovery.

As I wrote before, no good reason exists for not having mandatory discovery. The following list contains what 96% of all motions to produce contain and what they have requested for years:
1. Copies of your federal and state income tax returns, with W-2 s attached, for two years preceding the date of the Motion to Produce.

2. Copies of your last four (4) statements from any and all financial institutions in which you have funds in your name, individually, or with any other person. Financial institution shall include any bank, loan association, credit union, savings bank, private bank, industrial loan, investment companies, or stock brokers.

3. Copies your last statement from any and all IRA s, pensions, retirements, or Profit Sharing Plans or accounts.

4. Copies of your monthly statements from any and all credit card accounts.

5. Copies of all exhibits that you intend to introduce at trial of this cause.

6. A list of all of your witnesses, including a brief summary of each of their testimony
In counties requiring a financial declaration, the motion to produce would include the financial declaration. I ask my clients to get this information to me after the first meeting. For these reasons I see why more of Indiana's trial courts do not adopt trial rules requiring the exchange of these documents without requiring the filing of a motion.

After all requiring the parties to exchange these documents does remove all discovery. Interrogatories (written questions) and depositions remain. Although, I suppose a method could be devised limiting the need for using these methods to get routine information.

The courts recognizing that we now practice in the computer age might have a beneficial effect on the costs of discovery. Since I do not think I was emphatic enough so far, let me state clearly any lawyer with a computer uses canned forms. Whether the attorney's office has progressed from using search and replace to a program such as HotDocs changes nothing about the fact of canned forms. I have seen lawyers request fees from my clients for preparing discovery documents which I know are canned forms. I use flat fees for most of my family practice because of being computerized. See my article Where I Want to go with Flat Fees on more about being computerized and attorney fees.

Why do we use discovery? Because we really want to know the case before court starts. Lawyers hate surprises (Perry Mason was a fictional character). We overwork them to keep the clients happy. To use a military analogy, discovery is reconnaissance of the other side's case and they of our case

Remember that whatever you ask for will need to be examined and that takes time. So not all cost will be lost (or fees for my fellow attorneys).

Once the one side receives the information from the other side, prepping the client and witnesses is the next step. I like going over discovery responses with my client, especially the documents. Get them ready for the questions from me and from the other side.

Settlement offers usually start with the end of discovery. Everyone has a good idea of the marital pot's actual worth (see my articles on property issues here). Custody issues have a less concrete nature than property issues. With property, total up the assets and subtract the debts and divide by one half. One can settle all of the issues or just part or none.

If you do not settle all issues, then the next stop is court and the Final Hearing.

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