How Does “Discovery” Help In A Family Law Case?
“Discovery” in a family law case consists of various methods of finding information to help further your case.
Discovery takes different forms, depending the type of case. For example, in a criminal case, most of the time the defendant has to obtain the information necessary to defend his or herself. You have to request discovery from the prosecution, and the prosecution has to share their findings of the defendant with the other side, including any exculpatory evidence that could help the defendant’s case. The prosecution is required to share that information with the defense.
However, in a civil case, such as a family law, discovery rules are different in ways that a person can gather information to assist them in their case, and prepare their case for trial are not as automatic.
How Can Discovery Help To get A Favorable outcome In A Family Law Or Juvenile Court Case?
Gathering evidence will help with a favorable outcome in a family law case. The more evidence you have, the better you are able to support your claims and defenses. Unfortunately, many people fail to take this needed step of engaging in “discovery” to assist in their case.
Often a party fails to undergo, or to conduct discovery, which would help their case, is because they are looking for a quick resolution to their case, such as resolving things at mediation. Many times a family law litigant or juvenile court litigant will heed the advice of an attorney who advises them to try mediation, and resolve their case quickly. Although resolving your matter at mediation quickly at the beginning of your case, can be a good thing, but it can also be harmful.
Let me explain. In family law cases in Utah, mediation is required before the court will grant a trial date. The court is not going to have a trial unless the parties have attempted mediation first. However, there are no rules about when mediation takes place, except that it has to happen at least thirty days before a trial. It can happen before the case is filed, but when you mediate, it is a strategically important decision. If you go to mediation early without conducting discovery, or developing your case, and you reach a resolution, fabulous. You just saved yourself a ton of money. But you can only force the other side in mediation once. If you go to mediation, and do not reach a resolution, then you have no choice but to litigate.
I typically advise my clients that I do not like to go to mediation early in the case unless the parties get along well, and the client is confident that the other side is not going to be unreasonable. If the other side is acrimonious, uncooperative, or has some advantage against my client, I typically advise my clients not to mediate until they have a bit more leverage. There are two main methods to obtain leverage: one to do well (obtain favorable orders) with at a “temporary orders” hearing. The other way to gain additional advantage, or to negate, or offset any leverage that the opposing party has against you, is to engage in discovery.
Discovery improves the chance of a positive outcome both by allowing you to obtain leverage against the other side for purposes of mediation, but it also helps you build your case in the event mediation fails and wind up having to go to trial.
What Factors Help You To Determine Whether A Family Law Case Requires Discovery Or not?
Obviously, the first factor would be what are the issues in a case? If the issues are relatively simple, and can be established without conducting an extensive discovery, then there is generally no need. However, if the issues are complicated, or difficult to prove, the likelihood of a discovery being needed is increased. An additional factor early on is the likelihood of a settlement with the other side. If the other party has realistic expectations, and has demonstrated good faith willingness to resolve the case along reasonable lines, then I may delay discovery in an optimistic attempt to settle the case so reduce client costs.
However, if the issues are complicated, or if there is a great deal of information that we are lacking, or if the other party has unrealistic expectations, and not being reasonable in their settlement negotiations, that increases the likelihood that discovery will be necessary to resolve the case. Leverage is needed against the unreasonable party in order to give them a “reality check” regarding the strengths and weaknesses of their case. Also discovery is needed to prepare for trial when it appears settlement negotiations are getting nowhere.
You are only given a limited time to conduct discovery, and some attorneys make the mistake of spending months in settlement negotiations, wasting the time that they could be conducting discovery, and then when settlement negotiations fail, they panic, because there little if any time left to conduct discovery.