Divorce/Custody: Let's Talk Docs: Tips to Dominate DISCOVERY!
Discovery is Procedural NOT Personal!! (when done right)
Listen up--you're not alone...
One of the most misunderstood, feared, confusing, frustrating, maligned, laborious, invasive parts of family law matters is Discovery--the requests for and exchange of documents, info and things between parties.
As are, I would add, even inquiries about such information when consulting with prospective attorneys.
What the bleep does Discovery include?
Think... check stubs, bank statements, tax returns, mortgage or rental documents, investment/retirement accounts, asset/debt disclosure, business info, expenses, roommate/significant other deets, vehicle info (lic/reg/ins/lien), resume, credentials, criminal history, social media history (gulp...yep, could happen), etc, etc, etc.
Ditch the discomfort of divulging...
1) When you consult with a potential attorney, they become conflicted from consulting or working with the opposing party, i.e., they can’t share your information in a way that would prejudice you. So be forthright with your responses from the get go.
Why an attorney would ask for actual ‘docs’ pre-hire, I can't specify, but possibilities include to better understand things you’ve mentioned, help assess what your matter will require to determine their availability, project likely procedures/experts/costs involved (over time and for retainer setting), assess credibility, etc.
There are a host of imaginable reasons for a prospective attorney's questions, none of which would be nefarious – – there is precisely ZERO incentive for me, a prospective attorney, to ask a potential client for information for my personal benefit. Zero.
But, there are countless reasons I might ask for information that is (understandably) inobvious to a prospective client.
2) Once a case is underway—Discovery (request for production), is to be expected, is governed by statute/rules of procedure/court rules—know YOURS' and comply with them.
3) MOST importantly, grasp this—Discovery is PROCEDURAL—NOT PERSONAL, regardless, how invasive it feels (and it does).
Parties (or attorneys on their behalf) are REQUIRED to share certain information with the other side. Hence the laws/rules stating so and how.
4) Yes, certain legal objections to certain requests exist—but know what those are in YOUR jurisdiction before making them. And know the timeline within which you must make them (lest you waive them).
Examples in Oregon:
- Stating 'the other party has equal access to the item' is NOT a legal objection.
- If you do not provide your objections to the other side within 30-days of receiving a Discovery Request (aka Request for Production)--you waive them.
5) Non- or insufficient responses to a legitimate discovery request (absent legitimate legal objection), risks opposing asking the court to compel your production, which not only looks shifty or obstructionist to the court, but risks an award of attorneys fees against you for opposing having to compel what should’ve been complied with voluntarily.
6) If a client refuses to provide me (their attorney), items under a legitimate Discovery request, I fire them—out of respect for their finances and my professional standards.
I simply cannot, in good conscience, bill clients who are thwarting the work they hired me to do.
Now let this be helpful...
Discovery is, hands-down, one of the most sensitive, angsty parts of a family law (or any), proceeding. But it is exactly that—part of a ‘proceeding.’
So, word to the wise—do your homework, take a breath, and remind yourself:
DISCOVERY IS PROCEDURAL NOT PERSONAL--GO DOMINATE!!
