Many attorneys overlook the discovery process in divorce cases. Whether it be budgetary concerns or less complex case issues, there are a myriad of reasons that discovery is overlooked. That being said, thorough discovery should always be a part of your strategy. Even in truly uncontested cases, some basic discovery can protect you from a malpractice suit.
The math is simple. Well-prepared attorneys get better results for clients. Clients refer back to attorneys that obtained good results.
Here are some steps you can take to better work through the discovery process:
- Thoroughly complete any required document exchanges: In many jurisdictions, the parties are required to exchange a specific list of documents. Send every document on the list so that the other side has no excuse not to turn over their documents.
- Subpoena the Employment Records: In a divorce case, Employment records may have a lot of relevant information. If you can get the personnel file, then there could be pertinent information such as drug test results, missed work, disciplinary actions, etc.
- Utilize Interrogatories: Interrogatories are a discovery tactic that requires the opposing party to answer a list of written questions under oath. Many attorneys look down on Interrogatories. They may be simplistic but they provide a baseline for discovery. They are also cost-effective when compared with taking a deposition.
- Take a Deposition Early: There is no set rule that you must schedule your depositions for the end of the case. Scheduling early can save you thousands of dollars in legal fees if the deposition helps resolve the case earlier. You may uncover the lynchpin to the case in the first few months.
- Admit or Deny: Attorneys rarely use a Request for Admissions. Admissions are a discovery tool that asks your ex to admit or deny certain facts about your marriage. If used strategically, these can make or break a case. You can effectively box in the opposing party on certain issues and clarify the finer details on other issues.
- Motion for a Guardian ad Litem (GAL): A Guardian ad Litem is a third-party attorney appointed by the Judge to represent the child in a court case. A GAL can be very useful, including in investigating various allegations.
- Educate your Guardian ad Litem: The more knowledge a GAL has, the better equipped they are to dig into the allegations. Give the GAL all of your helpful information. It will help frame the case for the GAL as they start their work.
- Incorporate your GAL: An effective GAL can make good things happen in family law cases. Make sure you are involving the the GAL at every turn. Make them your ally. Cognitive dissonance will then make it harder for them to recommend against you later in the case.
- Use your GAL for Interim Orders: In many jurisdictions, you can utilize the GAL to make recommendations for a temporary visitation schedule in divorce and family law cases. The Guardian’s opinion carries weight so use it to your benefit.
- Initiate a GAL-led meeting: Guardians are typically experienced members of the legal community with years of experience handling custody and divorce cases. There is likely no better person to lead a settlement meeting.
- Handle the personal property items now: Many lawyers wait until the end of the divorce case to work on dividing personal property items. Schedule a walkthrough early. Take an inventory. Earlier is often better in these situations.
- Inspect the property: Whether for property items or another issue, schedule an inspection. Record it if you’d like. Even if your client is the party that has left the home, you should be entitled to an inspection of the home. Most states allow access to the property for this purpose upon filing of a Motion.
- Consult with experts: Divorce cases can be complex and may touch on numerous areas of expertise. Find people who can help. You may need a psychological exam or a financial expert. Provide your clients with options for resources.
- Vocational Examination: In terms of experts, a vocational expert can testify in your case. Judges tend to like experts who can explain the finer details of financial issues. A few thousand dollars may save your client years’ worth of alimony.
- Talk to the counselor: Attorneys are often surprised at how helpful counselors can be. Also, depending on your jurisdiction, counselors may be compelled to testify about a party, particularly in a custody case. The mental health of the parent is a custody factor in some states.
- How about Educators?: Educators interact with their students daily and typically have a keen sense of what’s happening in their home environments. Many GALs reach out to teachers to get feedback on a child’s presentation at school and on parental involvement.
- Third-party witnesses: The Court can usually benefit from hearing from third parties, particularly if they are neutral. Family or child counselors are big ones in divorce cases. You might also consider family, friends, and neighbors and see if they would be willing to speak to testify or speak to the GAL.
- Trace funds: Property division rights in most states are more nuanced than a search of the case law would reveal. A lot of property considered to be marital may also have a separate component to it. However, unless you conduct proper discovery, the Court will not be able to see the money trail.
- Appraisals can be your friend: Can anyone explain why attorneys rely on Zillow to value the most important asset in most divorce cases? Appraisals are affordable and much more accurate. I’d rather spend $400.00 on an appraisal than lose $20,000.00 in equity at trial.
Don’t sleep on effective discovery. You can provide your client with a better experience and likely reach a more detailed and successful outcome. You will also be insulating yourself against unexpected outcomes.
By Stephen J. Bardol, Family Law Attorney
Stephen J. Bardol owns and manages a divorce practice in St. Louis, Missouri. He has been exclusively handling family law matters, including contested divorce and custody cases, since 2011. He currently manages three attorneys and additional staff.
