What Is Discovery?
It’s a legal term, referring to a PROCESS, rather than an event. Discovery is that series of things that you do to, well, DISCOVER what you want to know from the other side. It takes months, and several different procedures are available to you during the discovery process. Those same procedures are available to the other side.
The other side would be nuts to settle the case, without getting all the information first. YOU would be nuts to settle the case, without getting all the information first, wouldn’t you? The discovery process is how you find out that information, and how you provide similar information to the other side.
Several different discovery tools are available to you and your lawyer. You may have heard of some of them, and I haven’t listed them all here, I’m just trying to give you an overview of the process:
Depositions
This is where you can call a witness, and take that person’s testimony, under oath. Only it’s not done in a courtroom, it’s done in your lawyer’s office. A court reporter is present, and transcribes everything, or, nowadays, a video crew is present, and videotapes everything. This can save a lot of time and can accomplish two things very well: locking down someone’s testimony, to the point that they won’t have to appear at the trial, and/or obtaining information that you didn’t have before.
Interrogatories
These are written questions, as opposed to verbal questions, submitted to a party to the lawsuit (the PARTIES to this lawsuit are the plaintiff and the defendant. You and your soon-to-be-ex). The questions have to be answered under oath. It’s not uncommon to see twelve pages of questions submitted in a divorce or custody case, and every question has to be answered. It’s a real pain, but it does have one advantage: almost all the information you need is now contained in one place, and that’s the ANSWERS TO INTERROGATORIES that are provided in response to the questions.
Request For Production Of Documents
This document is titled as a “request” but that’s just to be polite. It’s really a “demand” for production of documents, and it’s directed to the other side, to obtain copies of documents that they have, but that you want. You’re entitled to those documents, and this is how you get them.
Subpoena “Duces Tecum”
Don’t get hung up, or intimidated, by the Latin words. The Latin means, more or less, “for things”. So it’s a subpoena for things, as opposed to being a subpoena for a person. (You might as well learn how to pronounce the thing as well: here we go. “duces” is pronounced just like the playing card, the deuce, if you have more than one of them. I have two deuces, and three trays, for a full house. “tecum” would be better spelled if it was tekum. Try this: in our hi-tech world, you can make a hi-tech assault on your enemies? Just TECH ‘EM. Deuces Tek ’em. You’ve got it.)
This subpoena is delivered (served) on someone, or something (like a bank) that is NOT a party to the lawsuit, usually for copies of records that are maintained by that person or business (“Dear bank: send over copies of all of John Jones’ bank statements for the last three years”).
Requests For Admission
This one is really neat. You send over to the other side a “request” that they admit something (a fact, not an opinion) is TRUE. They HAVE TO ADMIT IT, IF THEY KNOW IT’S TRUE. Oh, and if they DON’T admit it, and you have to go to the trouble and expense of proving that it’s true, THEY HAVE TO PAY ALL OF YOUR FEES that you expended in proving that the fact was true. Including the attorneys’ fees, by the hour.
Of course, the same thing applies to you. Let’s suppose that you get served, though your lawyer’s office, a Request For Admission: Defendant requests that the Plaintiff admitted that she has eighteen years of service, for purposes of computing her retirement benefit. You answer back “Plaintiff does not admit that she has eighteen years of service. Plaintiff hired in with Harris County, as a park ranger, in 2002. This year is 2019.” And, of course, your statement “Plaintiff hired in with Harris County in 2002” is a true statement, as is the statement that this very year is 2019.
What happens next?
1. The other side schedules the deposition of the Harris County Personnel Director, and demands (by delivering a subpoena duces tecum) that he brings all of his records that bear your name to the deposition.
2. The other side hires a court reporter to attend the deposition, which she does, and she transcribes everything said, and prepares a written transcript.
3. The other side asks the personnel director to describe his job, his duties, what kind of records he maintains as part of his job, and then they ask him “Does Harris County have some sort of program where an employee can “buy back” time that was served in the military service of this country, so that an employee could retire sooner than twenty-five actual years on the job?”
4. The personnel director says “Yes, we do”.
5. The next question: “Has the Plaintiff utilized that program? And if so, how?”
6. The answer: “Well, the Plaintiff served in the military for seven years, from 2002 until 2018, when she hired into Harris County. She paid a fee of two hundred dollars, four years ago, and exercised her right to “buy back” that military time. For all intents and purposes, she has eighteen years of service with Genesee County, and she will be eligible for full twenty-five-year retirement in seven more years”.
Your goose is cooked. The other side is going to file a motion, and ask the judge to order you to pay ALL OF THEIR COSTS. The witness fee for the personnel director, the transcript fee, the hourly wage of the court reporter, about six hours of attorneys fees, the motion fee which they had to pay to get in front of the judge on motion day, everything they can think of that might possibly fit.
And the judge is going to give it to them. You are going to pay it all. Because you did not admit what you knew was true after the other side demanded that you admit it, by delivering to you a Request For Admissions. You will learn (either the easy way, or, the hard way, but you will learn) that most lawyers know how to do their job. That lawyer is going to do fifty divorces this year, and you’re going to do one. Yours. Do you really want to bet that he doesn’t know how to do this case? That you can try to pull a stunt like that and get away with it? The discovery process is designed to get at the facts, the truth, and it usually does. Let’s move on, shall we?
That’s how the discovery process works, generally. It takes a little time to gather all of the information that you need, but you’ll get it. It’s not particularly cheap, either, as far as attorneys fees are concerned. You can help a lot: just ask your attorney what you can do to help, so the attorney doesn’t have to do it at the attorney’s hourly rate. You can go and get a letter from the bank, on bank letterhead, that tells, to the penny, how much is owed on the mortgage on the marital home. Why pay your lawyer to do that job?
Here comes that free legal advice again: what you are paying me for: BE REASONABLE. ALWAYS TELL THE TRUTH. Your lawyer will tell you the same thing.
Would you like to know the REAL cost of that failure to admit that we just looked at? It’s not the eighteen hundred dollars that you had to pay to the other side for your failure to admit what you knew was true. You paid it. You felt like an idiot, but you paid for it, and it’s over, and the case goes on, and, sooner or later, you get to trial.
Your case gets called. The judge says “Have I seen this woman before? Isn’t she the one that was playing games with the pension last year?”