What Are The Various Types Of Discovery In a Family Law Case?
The same discovery available in any civil case is also available in a family law case.
Subpoenas: One common forms of discovery is subpoenas. For example, a party may subpoena various records from say, a bank, the title company, Phone Company, or from any other third party that may have documentation. When an attorney issues a subpoena, the third party being subpoenaed, who is not a party to the case, generally has the opportunity to object to the subpoena if they have grounds to do so. For example, if you are subpoenaing mental health records, then a psychotherapist-patient privilege might be raised as an objection to the subpoena. However, in family law cases where children are involved, and in some other select exceptions, the court will order those records released anyway.
Requests for Admission: Another form of discovery are requests for admission. These are questions that you put to the other side in writing asking them to admit various facts. The questions might be something like this, “Please admit that the other party has been the primary caretaker of the children” or “Please admit you have the ability to earn $6,500.00 per month.” The number of the requests for admissions depends on the amount of money at stake in the case. For most family law cases, you will get ten requests for admissions. Once you serve the other side with those requests for admissions, they have twenty-eight (28) days to file an answer, and admit, or deny those requests. If they do not file those answers in twenty-eight days, then the requests for admissions are automatically “deemed admitted” by the court, and you no longer have to prove the fact you are requesting the other side to admit.
Interrogatories: Similarly, in most family law cases you are allowed ten “interrogatories.” These are essentially ten questions that are not admissions. These are any ten relevant questions you want to ask. Typical examples might include asking the other side to describe their sources of income, and how much they have earned, and from what sources, and over what period, or describe what business interests they have, or describe their weaknesses as a parent. There are many different types of interrogatories that can be used, all depending upon the issues in your case. If substance abuse is an issue, you can ask them to list every substance they have ever used, how often, when, under what circumstances, and who was with them at the time of using. It can be almost anything, so long as it as calculated to lead to relevant evidence.
Requests For Production of Documents: Another form of discovery are requests for production of documents (or for inspection). This is also made to the other party, and you get typically ten of these. A typical request would include, “Please provide your pay stubs from X date to the present,” or please “provide all mental health records, substance abuse records,” or “please provide all loan applications that you have filled out,” or }please provide your tax returns together with all your schedules for the last X number of years.” There are many different types, but those are some examples.
Once again, both for the interrogatories, and the request for production of documents, the other side has twenty-eight days to file their response. I refer to those first four types of discovery (subpoenas, interrogatories, requests for admission, and request for production of documents) as “paper discovery” because you write them down, and serve them to the other side.
There are also other forms of discovery that are even more powerful.
Depositions: Depositions are a key form of discovery, and one of the most powerful types, because at a deposition, you require the other party to show up at your attorney’s office with a court reporter, who records the conversation, and who will provide a transcript of the deposition after it is over.
The court reporter places other party under oath to tell the whole truth and nothing but the truth. Then your attorney is allowed to question the other party, or witness, for up to seven hours. Up to four hours if it is a non-party witness. Depositions can be powerful for a number of reasons. First, it narrows down the other party to a position, and you can use the deposition transcript at trial and at subsequent hearings. You can use deposition transcripts make sure that they have not changed their position, or testimony. It also helps to reveal the attitude of the other party.
Revealing the attitudes of the other party is particularly helpful in child-related issues. Their beliefs about their own behavior and parenting ability can be revealed and used to your advantage. At a deposition, a good attorney can demonstrate the other party’s lack of insight, and the effect of their behavior on the children and others. At the end of the day, it is impossible to defend bad behavior against an experienced attorney who is conducting your deposition. Here is what I mean. If a party has engaged in bad behavior, and you ask them about it, if they admit that they have behaved poorly, that is helpful to your case. If they deny this accusation, and you can prove what they did, they are a liar, and that helps your case. If they try to justify their actions, then you are able to demonstrate that they “lack insight into the effect of their behavior” on others, which also helps your case. Thus, if you actually have some evidence that the other side is engaged in some negative behavior, it is nearly impossible for them to defend this against an attorney who knows what they are doing in a deposition.
Of course, the other way that a deposition can help your case is by finding out information that you did not know beforehand.
Expert Discovery: Another powerful form of discovery can be expert discovery. There are many different types of experts that family lawyers use.
Vocational assessments are used to assess one party’s earning abilities, particularly if you think that one party is voluntarily unemployed or voluntarily underemployed, and they are not making as much as they could. Vocational assessments are used to determine how much a party could be making, which in turn helps establish what child support, or alimony should be.
Custody evaluations are used to determine the parent’s relative strengths and weaknesses, with the relationships between the children, the parents, and what is in the children’s best interests as far as custody, and visitation. Custody evaluations are used to determine what interventions, or treatment is necessary for a parent with problems.
Substance abuse evaluations can be used to determine a party’s substance abuse history, what treatment, or interventions are needed for that party to become sober and stable. Appraisals of real property, residences, or businesses are used to determine the value of a piece of property, or a business.
Parental fitness evaluations or mental health examinations can be used to determine a party’s mental stability, or if they have routinely engaged in habits, behaviors, and thought patterns that have a negative impact on the children, and determine what treatments or interventions are necessary to mitigate those problems.
There are a few other types of expert discovery that can be used also, such as business valuations, appraisals, forensic accounting reports, private investigation reports, etc.