Understanding the Discovery Process in Divorce Litigation
“Discovery” is the process through which you and your lawyer uncover the facts and documents necessary to conclude your divorce. This process involves Interrogatories, Requests for Production of Documents, Requests for Admissions, and depositions.
Interrogatories and Requests for Production of Documents are a series of written questions and requests for various documents (usually financial documents) sent or received by your lawyer seeking information about the facts of your case. Each party typically has 30 days to answer the other spouse’s Interrogatories and Requests for Production of Documents. Your lawyer and his or her staff will likely help you prepare your answers.
Interrogatories are always answered under oath. Your answers must be truthful. There is no excuse for a failure to tell the truth. Carefully review every word of your answers. Proofread, proofread and proofread again! Every word of your answers may be used against you if they are inaccurate or untrue.
If you and your lawyer cooperate with your spouse’s lawyer and provide full and complete disclosures, you will speed up the resolution of the case and keep the cost down. If you and your lawyer intentionally delay responding to your spouse’s discovery requests, you will quickly create distrust, which will make your case more difficult and expensive to resolve.
Requests for Admissions are a series of written questions that ask a spouse to admit the truth of certain facts. The spouse must respond in writing to all Requests for Admissions within 30 days of receipt. If you fail to respond to the Requests for Admissions within 30 days, then the court may rule the factual allegations are true even if they are not. If you deny that a fact is true and your spouse’s lawyer later proves that fact to be true, you may have to pay your spouse’s attorney’s fees for the time required to prove the fact.
A deposition is a formal proceeding, transcribed by a court reporter, they usually takes place in a lawyer’s office where spouses or witnesses give testimony under oath. Your lawyer should be present with you, and your spouse’s lawyer should be present with him or her. The spouses and any witnesses who are testifying can be asked questions by all lawyers present about any fact or issue that is legally relevant to the case.
It is imperative that you make a good impression as a witness in a deposition because how you tell your story may be more important than what you say. Your goal is to convince her spouse’s lawyer that you will be a sympathetic, likable and credible witness in court. You may get a better settlement offer if your spouse’s lawyer believes you will make a good impression at trial.
It is important to prepare for a deposition. One of the goals of deposition preparation is to make sure you and your lawyer are not surprised by any questions asked. Carefully review all Complaints, Answers, correspondence, Orders, Interrogatories, Requests for Production of Documents, Requests for Admissions and expert witness statements. Pay particular attention to all documents personally signed under oath by you or your spouse.
Be ready to answer all questions truthfully. Every word you say during a deposition may be used against you at trial. Your story may be difficult, embarrassing and humiliating, but you must always tell the truth under oath. If the judge thinks you are lying or hiding information, you will likely lose your case and damage your reputation. Lying is never acceptable, especially in the eyes of the judge. If you realize you made a mistake or one of your answers is inaccurate, correct your answer immediately.
You do not have to tell the whole story in a deposition so do not volunteer information you have not been asked — even if you think it will help your case. Resist the temptation to educate your spouse and his or her lawyer about how strong you think your case is. Do not be tempted to educate your spouse’s lawyer about what you think they should know. Instead, make the lawyer ask for the information he or she wants. Listen carefully to each question, and do not try to answer until you fully understand the question. Think about the question before you begin to answer. Never just blurt out an answer.
Answer the question asked. Keep your answers short and to the point. Never guess. Never speculate. Guessing is rarely accurate or truthful and can make you look deceptive. It is fine to say you do not know the answer to a question if that is the truth.
If you have finished your answer, resist the temptation to continue talking if your spouse’s lawyer remains silent. Do not get distracted by trying to figure out why your spouse’s lawyer asked a specific question or what the next question will be.
Do not let your spouse’s lawyer anger you. Do not argue with or threaten your spouse’s attorney. Your lawyer will protect you from improper questioning.
Never say anything or do anything during the deposition that would embarrass you if the judge read your testimony in court. Be on your best behavior. Do not answer in a sarcastic or derogatory manner. Never be rude or arrogant, curse or use inappropriate language, or yell or scream. Should you begin to lose control of your emotions, tell your lawyer you need to take a break. Angry and volatile witnesses make mistakes. A written transcript will be prepared of your deposition testimony. Always keep in mind how your deposition testimony will sound to the lawyers and the judge.
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Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.