Cecily Zamora
In family law, discovery is a pre-trial procedure that allows each party to obtain evidence from the other party. This can include communication records, documentation of expenses, legal documents, and personal information. The process of drafting requests for information, cataloging responses, and attending hearings can span tens of billable hours, depending on the nature of the issues. Additionally, the rise of electronic communication and email has increased the volume of documentation to be reviewed, further adding to the expense. Obstructive tactics employed by both parties and their lawyers can also increase the time and cost of the discovery process.
| Characteristics | Values |
|---|---|
| Time-consuming | Attorneys spend billable hours drafting requests for information, cataloging responses, and drafting and attending hearings. |
| Complexity | Attorneys must carefully craft the phrasing of questions, and clients often expect more information than is needed. |
| Costly documentation | Discovery often involves subpoenaing documents, which can be expensive and time-consuming. |
| Electronic communication | Emails, text messages, and other electronic communications are now commonly requested, adding to the volume of documentation. |
| Obstructive tactics | Lawyers may use obstructive tactics, such as making excuses for not producing documents or filing excessive objections, prolonging the process and increasing costs. |
| Depositions | Depositions require the presence of a court reporter and the production of transcripts, making them more expensive than other forms of discovery. |
| Personal information | Requests for personal information, which is typically relevant in family law cases, can be invasive and lead to increased expenses if objections are raised. |
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What You'll Learn
- Discovery involves multiple stages, each requiring billable attorney time
- The process can be lengthy, with 30-day response periods
- Attorneys may use obstructive tactics, requiring more work
- Depositions are expensive due to the need for court reporters
- Requests for information are often extremely overwhelming
Discovery involves multiple stages, each requiring billable attorney time
In family law cases, discovery is a pre-trial procedure that allows each party to obtain evidence from the other party. This includes documents, emails, text messages, social media communications, and other forms of electronic communication. The discovery process can be time-consuming and expensive, as it involves multiple stages, each requiring billable attorney time.
The first stage of discovery involves drafting the requests for information. This can be a lengthy process, as attorneys must carefully craft the correct phrasing of questions to ensure they obtain the necessary information. The complexity of the information sought can significantly impact the time and cost of this stage.
Once the requests have been sent, the other party typically has thirty days to respond. During this time, the attorney must wait, which can delay the case and incur additional costs. The responding party may also engage in obstructive tactics, such as providing incomplete responses or making excuses for not producing certain documents. This can further prolong the process and increase expenses.
After receiving the responses, the attorney must then review and catalogue the information. This stage can be time-consuming, especially if the responding party has provided extensive documentation. The attorney must carefully examine each document to identify relevant evidence and ensure that all requested information has been provided.
If there are issues with the responses, the attorney may need to draft and file a "Motion to Compel" with the court. This motion requires detailed explanations and proof that the requesting party has taken appropriate steps to obtain the missing information. Preparing such a motion can be a lengthy and costly process, requiring additional billable attorney hours.
Throughout the discovery process, depositions may also be conducted. Depositions are formal interviews held in an attorney's office, a courtroom, or a nearby room. They are attended by a court reporter who produces a written transcript. Depositions can be expensive due to the cost of the court reporter and the time required to prepare for and attend the interview.
Each stage of the discovery process contributes to the overall expense, and the costs can quickly add up, especially in complex cases or when the other party engages in obstructive tactics. Therefore, it is essential for attorneys to provide their clients with a clear understanding of the potential time and financial commitments involved in conducting discovery.
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The process can be lengthy, with 30-day response periods
In family law cases, discovery is a pre-trial procedure that allows each party to obtain evidence from the other party. This can include a Request for Production of Documents, Interrogatories, and Admissions. The process can be lengthy, with 30-day response periods. During this time, the requesting party must draft detailed and specific requests for information, which can take billable hours of an attorney's time, depending on the complexity of the information sought.
After the requests are sent, the responding party typically has 30 days to respond. If they fail to respond or refuse to comply, they may face sanctions, including court orders, awards of expenses, and even dismissal of claims. However, it is important to note that there are valid reasons for non-compliance, such as having a valid objection to a particular question or request.
The length of the process is also impacted by the nature of the issues involved. For example, if there are disputes or objections during the discovery process, a Motion to Compel may need to be filed with the court, which requires detailed explanations and proof of the requesting party's attempts to obtain the information. This adds to the overall time and cost of the discovery process.
Additionally, the type of information requested can impact the length of the process. For instance, gathering and producing electronic communication records, such as emails, text messages, and social media communications, can be time-consuming and contribute to the overall length of the discovery process.
Furthermore, depositions, which are typically conducted in an attorney's office or a room near a courtroom, can also prolong the process. Depositions are more expensive than other forms of discovery due to the involvement of a court reporter and the production of transcripts. The need for scheduling and coordinating the availability of all parties and witnesses can also contribute to the overall length of the discovery process.
In summary, the 30-day response periods, combined with the time required for drafting requests, addressing disputes, gathering certain types of information, and conducting depositions, can make the discovery process in family law cases lengthy and expensive.
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Attorneys may use obstructive tactics, requiring more work
In family law cases, attorneys may use obstructive tactics that require more work and increase the overall cost of the case. While the use of such tactics may be rare among good lawyers, they are not unheard of. For example, attorneys may make excuses for not producing certain documents, a practice known as "hiding the ball". This can lead to a lengthy process of filing a "Motion to Compel" with the court, requiring detailed explanations and proof of appropriate steps taken to obtain the missing documents.
Additionally, attorneys may engage in "Rambo tactics", a term that emerged from discovery battles in the 1980s. This involves requesting excessive information, often more than what is needed, to overwhelm the other party. This can result in a time-consuming and costly process of reviewing and responding to the requests. While electronic communication has made it easier to produce documents, it has also contributed to the increase in the volume of information exchanged during discovery, making the process more expensive.
Furthermore, attorneys may use obstructive responses to requests for production. Instead of providing the requested information, they may raise "general" objections that apply to every request. These objections can be lengthy and further delay the process. They may also object to interrogatories directed at their clients' thoughts or opinions, which can increase legal expenses.
To address these obstructive tactics, parties may need to file additional motions or take other actions, such as seeking court intervention or engaging in further negotiations. This adds to the overall cost of the case. It is important for attorneys to be transparent with their clients about the potential costs and benefits of conducting discovery, so clients can make informed decisions about whether to proceed with this costly process.
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Depositions are expensive due to the need for court reporters
Depositions are a key part of the discovery process in family law cases, but they can be extremely expensive. This is largely due to the need for a court reporter, which is a legal requirement. The court reporter transcribes the deposition, and this becomes the official record. The cost of a court reporter is typically borne by the party requesting the deposition, and this can run into thousands of dollars.
The cost of a court reporter is just one element of the expense of depositions. Depositions can last up to seven hours, and the longer they go on, the more costly they become. The time taken to prepare for a deposition is also a significant factor in the overall expense. Lawyers may spend many hours preparing for a deposition, and this time is often billed at a premium rate. The time spent drafting questions and the time spent waiting for responses also add to the overall cost.
The deposition process itself can be inefficient, with lawyers often accused of a lack of focus and poor organisation. This can lead to a waste of time and money, with lawyers going over the same ground multiple times and asking pointless questions. The time spent reviewing documents and questioning witnesses can be excessive, and the detail-oriented approach of some lawyers can result in an inordinate number of questions being asked.
The use of video depositions can also add to the expense. While not a legal requirement, video depositions are often used and can cost up to $200 an hour. This is despite the fact that smartphones can now take high-quality video, and there is no certification requirement to record a video deposition. The use of video does, however, require an experienced operator to monitor sound output and ensure the equipment is functioning correctly.
The expense of depositions is, therefore, largely due to the need for a court reporter, but other factors also contribute to the overall cost. The length of depositions, the time spent preparing, and the inefficiencies in the process all add to the expense.
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Requests for information are often extremely overwhelming
In family law cases, requests for information are often extremely overwhelming. This is because the requesting party will ask for more information than they need, as it is easier to over-ask and receive less than to under-ask and beg for more. This can lead to an extensive list of demands, such as monthly bank statements, financial statements, and documentation of expenses from the past 24 months.
Additionally, the process of drafting these requests takes billable time, with attorneys spending hours on the correct phrasing of questions. The other party then has 30 days to respond, and during this time, the requesting attorney must wait. After the responses are received, the attorney must then catalogue them, which takes even more time.
The discovery process can also involve subpoenaing documents from entities or deposing relevant witnesses, which is more expensive than other forms of discovery. This is because a court reporter must be paid to attend and produce a transcript, and a room must be rented for the deposition to take place.
Furthermore, the requesting party may encounter obstructive tactics, such as "general" objections, which can go on for pages, or the other party may fail to produce certain documents. In such cases, the requesting party can file a ""Motion to Compel" with the court, but this is a lengthy process that requires detailed explanations and proof of reasonable efforts to obtain the documents.
Overall, the time and effort required to draft and respond to requests for information, as well as the potential for obstructive tactics and the need for additional procedures, contribute to the overwhelming nature of discovery in family law cases.
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Frequently asked questions
Discovery is a pre-trial procedure in which each party to a divorce or child custody case obtains evidence from the other party. The process can be expensive because:
- It involves multiple steps, including drafting the discovery, cataloging responses, and attending hearings, which can span tens of billable hours.
- Depositions are often conducted, which require the presence of a court reporter and the production of transcripts, adding to the overall cost.
- Requests for Production can be overwhelming and time-consuming, as they may involve a large volume of documents and information.
- Obstructive tactics may be employed by either party, such as providing incomplete information or raising unnecessary objections, prolonging the process and increasing costs.
The types of information or documents requested during discovery in family law cases can vary depending on the specific issues and circumstances. However, some common examples include:
- Communication records: Emails, text messages, and other electronic communications between the parties or with relevant third parties.
- Documentation of expenses: Receipts, invoices, and records of financial expenses such as medical, child care, and household expenses.
- Legal documents: Previous court orders, agreements, and other legal documents relevant to the case or custody/support arrangements.
- Personal information: Information about potential witnesses, employment records, and financial statements.
To keep the costs of discovery down, it is essential to:
- Be cooperative and provide the requested information or documents promptly and completely.
- Only request relevant and necessary information, avoiding overly broad or burdensome requests.
- Be organised and keep proper records to easily locate and retrieve relevant information or documents.
- Communicate and collaborate with the other party to agree on the scope and method of discovery, reducing the need for costly motions or hearings.
Failing to respond to a discovery request can have significant consequences, including:
- Sanctions: The court may impose sanctions for non-compliance, such as awarding expenses or attorney's fees against the non-compliant party.
- Judgments: Your failure to respond may result in judgments against you, impacting the outcome of the case.
- Limitations on evidence: The court may issue orders preventing you from introducing certain evidence at trial or even striking your pleadings.
- Dismissal of claims: In extreme cases, your claims or defences may be dismissed due to non-compliance with discovery requests.
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