How to Benefit Your Case and Keep Costs Down in Discovery
When going through a contested divorce or custody case many clients struggle with the concept of discovery, why it is necessary, and how it can benefit their case. Discovery is the legal process in which a party may ask questions of the other party and request documents relevant to the case. Discovery is an integral part of the litigation process because it provides notice to each side of the specific issues in contest, and evidence to help build their case. Many clients find that discovery can be their greatest asset or their worst enemy. For those clients that struggle with the discovery process it is generally because they are unprepared. Here are five tips for making the discovery process work for you:
- Prepare before or at the beginning of the case. Discovery is typically issued at the onset of the case. Once discovery is issued, parties typically have 21 days to respond. What most clients do not realize is that their own attorney will likely need a week to compile, review, and complete their responses so the 21 days is actually more like 14. Clients can make the process less stressful by taking action before the discovery requests are issued. Begin compiling documents that are in your possession or reasonably attainable. These documents can range from bank records, medical records, school records and DMV documents to deeds. Keeping the documents in order by date or with tabs and numbers will help your attorney and his or her staff when they compile the formal discovery responses. It will also help to keep your attorney’s fees down.
- Use the paralegals. Many clients want to directly communicate with the attorney throughout the case, which is understandable, and most attorneys are happy to accommodate. However, when it comes to the discovery process the paralegals should take the lead. Your attorney’s paralegal will receive the documents you provide, review them for accuracy and completeness, and compile the documents into formal responses. That process generally takes many hours and numerous communications between client and paralegal. It is not until after a formal draft is completed that the attorney reviews the responses and accompanying documents. Do not be afraid to go straight to the paralegal with discovery questions and skip speaking with the attorney altogether. Paralegals should be able to answer your questions and if they cannot then they will communicate your questions to the attorney. Communicating directly with the paralegals helps to speed the process up and keeps your costs down.
- Answer the questions honestly. Part of the discovery process is Interrogatories. These are questions asked that require a party to write their answers as opposed to simply providing corresponding documents. Many clients struggle with how to answer the questions because they want to position themselves best for the impending litigation. Do not worry about that. Answer the question honestly. If you are uncertain about a piece of information you have included then highlight it and bring it to your attorney’s attention. You and your attorney can then review the information and decide if or how best to include it. Answering Interrogatories provides an opportunity to explain your side of the case, but being honest and providing complete answers is paramount. Providing misleading or half-truth answers can open the door for the other side to impeach your credibility in court.
- Be prepared for Objections and Motions to Compel. Clients can and often do become angered and frustrated when their attorney tells them that they have to file a Motion to Compel in order to force the other party to provide complete responses. Clients believe the other side is “gaming” the system and unnecessarily complicating the case or intentionally increasing attorney’s fees. Sometimes clients are right about this, but most litigation comes with objections to discovery, motions to compel, or some other sanction that requires a court hearing and resolution by the judge. Attorney’s fees for the cost of litigating the Motion to Compel can be granted to the non-offending party, however that is not guaranteed. Another issue that often arises is a client not providing complete responses because “the other side didn’t.” Sometimes parties want to punish the other party or apply the “what’s good for the goose is good for gander” philosophy to their case. This is not how it works. The other side’s deficiencies in responding to discovery requests do not exempt you from providing complete and timely responses. Providing piecemeal responses can only complicate your case, make the paralegal’s job more difficult, and increase your attorney’s fees. Providing complete and thorough responses to discovery, regardless of the opposing party’s actions, will set you up for success in the long run.
- Discovery needs to be supplemented. Discovery is typically issued at the beginning of a case with responses received shortly thereafter. Parties can then spend many months waiting for their final court hearing. During the pendency of the case, additional facts, witnesses, and documents can come to light. It is important to keep your attorney aware of this information so that the attorney can supplement the discovery. If the information is not provided through discovery then it cannot be used at the final trial. This does not mean that you have to email the attorney every single time something happens. In fact, doing that will only make it harder for your attorney to keep track of everything, while also costing you more money in legal fees. Keep the attorney abreast of major issues and for other, more minor, issues keep a journal with all the relevant information. When the final trial draws near provide the updated information and journal to your attorney so that he or she can send a formal update to the other side of your previous discovery responses.
Livesay & Myers, P.C. has a team of divorce attorneys in Virginia who are knowledgeable and skilled at navigating the discovery process. If you are facing a divorce or custody matter in Northern Virginia, contact us to schedule a consultation today.