Discovery, a modern procedural development, is a formal method of obtaining information from the other side before trial.

The primary forms of discovery are oral depositions taken from the other party or a witness, written interrogatories or questions to the other party, requests for production and inspection of documents or property, requests for admission, and requests for physical and mental examination. Properly used discovery makes trial preparation easier, reduces costs, and improves the quality of justice. The abuse of discovery is burdensome and expensive.

Many routine cases employ no discovery, but it is common in cases involving contested custody, large amounts of support, and equitable apportionment of property involving significant wealth.

A deposition is the out-of-court testimony of a party or witness taken under oath, to discover facts or to preserve testimony for a later hearing. Each side may attend the deposition and each lawyer may question the witness. Taking the deposition of the other party and his or her witnesses will also reveal what their testimony will be under oath. I never discourage my adversary from taking the deposition of my client or witnesses because it helps me prepare for trial and helps the witness become comfortable while testifying. If your deposition is taken, it is my duty to prepare you for your deposition so you will know what to expect and how to conduct yourself. Appendix C, Page 83, outlines of some points we will discuss in preparing for your deposition. Do not worry about your deposition.

Interrogatories are written questions sent to the other party through his or her lawyer. General questions relate to the names, addresses, and anticipated testimony of witnesses; photographs, plats, sketches, or other prepared documents that relate to the claim or defense; and names and addresses of expert witnesses. Specific questions may deal with marital fault, custody issues, or financial issues. I frequently use interrogatories to obtain information before taking a deposition. If the other side sends interrogatories, I will ask you to prepare a draft of the answers to some questions. Then I will edit your answers to insure accuracy, clarity, and good faith. You and I will review the final draft together before you sign it under oath.

Requests for production and inspection of documents or property are used primarily to inspect and copy documents such as tax returns, canceled checks, evidence of ownership of property, and evidence of debts. When these records are available to both parties, it is frequently possible for the lawyers to agree upon some facts that would otherwise take tedious hours to prove in court. If the other side submits requests for production, Clients are frequently hostile and reluctant to produce the documents. I encourage cooperation and good faith. Even when I do not want to produce a document, I prefer not to let the other lawyer know that I attach any significance to the document.

Requests for admission ask for an admission of either specific facts or the genuineness of a document. Good faith answers will save hours of preparation and trial time. The rules provide a strong incentive to admit true facts. If a request to admit a fact is denied and later proven true, the judge may assess costs, including attorney's fees, against the person who refused to admit the fact. Denying that which is true will cause the offender to lose credibility with the trial judge.

A request for physical and mental examination is available but is rarely used in a domestic cases. Possible uses would be where one side claimed a physical inability to work or where mental stability was an issue in a custody case.

Despite its many positive benefits, discovery has a tremendous potential for oppression and abuse. It is my duty to the court to be fair and reasonable in our discovery requests, and it is my duty to you to protect you from unreasonable, oppressive, or abusive discovery. I intend to fulfill both obligations.

Clients resist discovery responses with the same vehemence they resist preparing a financial declaration. This is a mistake for two reasons. First, it is much more expensive for me to drag this information from you. Second, I will most probably get more benefit from your responses than the opposing lawyer, which better prepares me for trial.

More is better than less. My brother Clarkson, an excellent lawyer, in a discussion of discovery responses said, “You have to give them the needle but be sure to give them the haystack.” Following this philosophy, my preference and policy is to resolve all doubts for production. If I provide 10 pages of responses, the opposing lawyer will probably read every word. If I provide 500 pages, the opposing lawyer may skim through them. If I provide 2,000 pages of responses, the other lawyer may not look at them.

Work is a matter of attitude. Mark Twain described this in The Adventures of Tom Sawyer. “Work consists of whatever a body is obliged to do, and that Play consists of whatever a body is not obliged to do.” If you approach your discovery responses as play or a game, you can have fun while improving your case. You can also save a lot of money and avoid embarrassment in court.

My Favorite War Stories #15:
A Discovery Nightmare



The other side served request to produce that included “Appraisals: Produce for inspection and copying all appraisals of real and personal property issued in the last three (3) years. Include the appraisals performed by any person or entity on the business as any market analysis performed on the business.”

The request was clear and the request was appropriate. My client produced one appraisal regarding his business. The other side kept asking for any other appraisals. I checked with my client who insisted there was no other appraisal. The other side moved before the court to compel production of another appraisal. I told the court the second appraisal was “a figment of the other lawyer’s imagination” and expressed outrage at his having filed a motion to compel.

The other side produced evidence of the second appraisal and my client produced it. The second appraisal was about fifty percent higher than the first.

My client had to answer questions before the judge on why he tried to conceal the appraisal, why he was dishonest with the court, and why any of his testimony should be trusted. These questions, as you would expect, were damaging to my client’s case.

The irony was that the appraisal was not admissible. Even had the appraiser been admissible, I could have discredited the appraisal because the appraiser ignored the rules for establishing the value of a closely held corporation. The damage from the appraisal was zero but the damage to my client’s credibility and believability was devastating.