Discovery

If no settlement is in sight, the next phase involves information gathering known as discovery. As far as property, each party can be ordered to list all property and debts. This is called an “inventory and appraisal.” The party making the list must swear to it. Then, the two inventories are compared. A more expensive and time consuming process involves requests to the other party for information. The three main documents are: Requests for Disclosure, Interrogatories and Requests for Production of Documents.

Requests for Disclosure ask for witnesses, their information, witness statements and the party’s theory of the case.

Interrogatories are a series of questions. Pretty much anything can be asked as long as it is relevant to the issues in the case. The answers must be sworn to in front of a notary. Any falsehood in the answers will expose the party to a perjury charge.

Requests for Production of Documents are just that…asking for documents. This is perhaps the most abused form of discovery, as it puts a burden on the party being asked to round up the documents. Some of which the party may not have touched in years. Then, the requesting party can be given a hard time by having tons of documents are dumped on them. Parties do this to make the requestor find the needle in the haystack.

A party cannot object to the Requests for Disclosure. But, litigants can object to the other requests, much like there were in court. If the disputes cannot be resolved, a hearing will be called. Then the judge decides what the parties must turn over. The judge can punish parties who abuse the process, too. This does happen.

Another way to get documents is to serve a subpoena on a party to force them to bring documents to a hearing or deposition. A deposition is like a hearing, but it is not in court and the rules are different. You can make objections, but the witness still must answer the questions. The objections are sorted out later. The attorneys get to ask questions of the witness with a court reporter taking the whole thing down.

For custody cases, you can ask for a custody evaluation. An outside party, who has to meet certain qualifications, will investigate the child’s surroundings, that is, people, places, things. Then, make a recommendation or give their opinion. The recommendations of a child custody evaluator can be about possession, access, residence and anything affecting the best interests of the child. The child’s therapist, for example, cannot perform the evaluation. The child custody evaluation takes the place of what we used to call a social study. The new process started with cases filed in March of 2016.

After all information is gathered or you’ve done all you can do, it will be time for a pre-trial conference then trial. The rules put a limit on how much time and for how long the discovery period can go on. It must end sometime. After that period, no more discovery: it is time to wrap it up.

At pre-trial, the parties advise the court as to the issues to be tried and what needs to be heard outside of the trial. At this point, parties tend to know whether they want a jury trial or try their case to the judge. In most cases, the parties will be ordered or agree to go to mediation as a last chance to end the case without trial.