DISCOVERY

Understanding Discovery
Forms of Discovery
Deposition Testimony

A Guide to Understanding the Legal Discovery Process

In a divorce (or “dissolution action”), each spouse is entitled to full disclosure of information from the other about the case. The legal procedure for obtaining that information is called discovery.

Attorneys for both sides have the right to ask each of you very pointed, sometimes very personal questions about you, your marriage, your relationships, your children and your finances.

The law requires honest responses to such questions, if they relate to the dissolution of the marriage, custody of your children, dissipation of marital assets, etc.

If a party refuses to respond to such discovery attempts, the court may issue an order compelling you to do so, with the possibility of being held in contempt of court and also possible financial sanctions.

Discovery can be a simple, speedy process or one consuming a great deal of time, energy and money.

Discovery takes place in several different forms

The most common are:

• Informal Discovery - The best approach. A voluntary development of information by making photocopies.
• Interrogatories - A list of questions known as interrogatories, requiring formal written answers to each question may be sent by one side to the other. The responding party has 30 days within which to respond to these questions.
• Requests for Production - One party may obtain documents from the other by serving Requests for Production. In other words, we ask the other side to provide us with copies of important documents. As with interrogatories, the responding party has 30 days within which to tender an answer.
• Requests for Admission - Like Requests for Production and Interrogatories, these are merely questions the other side must answer. However, if it is later proven the responding party lies when asked to admit the truth of an assertion, there are severe penalties that can be imposed by the Court.
• Depositions - In a deposition, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer's office while a court reporter takes down what is said and then prepares a transcript. The testimony may instead be videotaped. Occasionally, it is transcribed by a court reporter and videotaped as well.  Testimony at deposition is very much like testifying in court, except there is no judge present.

Deposition Testimony

We have a videotape available in our offices which our clients are welcome to watch before their depositions that explains deposition testimony in even more detail.

If giving your deposition, you will be placed under oath, just as if the examination were being conducted in the courtroom.

Since responses to Interrogatories, Requests for Production and Requests for Admission are all formal, in writing and prepared by your attorney with your assistance, we will devote the remainder of this brochure to the subject of deposition testimony.

You have the right to be present at your spouse’s deposition and should plan to be there, unless your attorney advises that it would be counterproductive.  However, you do NOT have the right to speak during your spouse’s deposition!

If your spouse lies during his/her deposition, there will be later opportunities to discredit that testimony.

When the time comes to give your deposition, we encourage our clients to:

• Ask your attorney before the deposition what sort of questions to expect.
• Tell the truth. You will be sworn in and under oath.
• Don’t guess about an answer. If you don’t know something or honestly can’t remember, say so!
• Answer the question and then shut up. The old adage we use here is, “If they ask you what time it is, don’t tell them how to build a clock!” Try to use Yes and No answers whenever possible.
• Don’t volunteer information. Tell the other side more than they ask for may prove damaging to your case.
• Arrive a few minutes early. You will probably be nervous about this experience. There’s no need to get off to a bad start because you couldn’t find a parking place. Better to be 5 or 10 minutes early and have a chance to relax before the deposition starts.
• Dress as if you were going to court or church. This means subdued clothing, makeup and grooming. Try to wear something comfortable as you may be sitting for quite a while.
• Tell the truth! We can’t emphasize this enough.
• Make sure you understand the question before you try to answer. Try to wait a second or two before you start to answer. This has several advantages. It permits the examining attorney an opportunity the chance to finish his/her question; it gives your attorney an opportunity to object if he/she chooses to do so; and it gives you a second to collect your thoughts and make sure you understand the question.
• Opposing counsel may attempt to provoke you by asking inflammatory questions. Do not allow such behavior to agitate you. Give your attorney an opportunity to object and instruct you not to answer such questions. Above all, do not get angry during the deposition as a seething outburst by you will doubtless by used against you by the other side.
• Answer the question and then stop talking. Again, we can’t emphasize this enough.
• Answer the question you’re asked and only the question you’re asked. “Yes” or “No” is often good enough.
• If you don’t understand the question, say so. No one can honestly answer a question he or she doesn’t understand. If the question isn’t clear, it’s a bad question.
• Be courteous and pleasant but not “chummy” with the other lawyer. Avoid sarcastic or argumentative responses.
• Don’t chew gum and don’t make jokes.
• Know the facts before your deposition. Spend some time with your attorney beforehand talking about the facts, your claims and your situation. Ask your attorney if you have any questions which concern you about custody, visitation, domestic violence, child support, maintenance, fault, attorney fees, division of marital property or debts.
• If your attorney objects to a question, DON’T ANSWER IT. Your attorney may instruct you not to answer a question. Other times, he or she may state an objection and direct you to answer the question anyway. Don’t be concerned. This is how we preserve a legal question.
• Talk directly to the attorney examining you.
• Try to relax and speak clearly.
• One more time:
  • Listen to the question.
  • Make sure you understand the question before responding.
  • Do not volunteer information.
  • Answer truthfully and then stop talking.