Saturday, April 21, 2012

Should We Do Informal Discovery?

Discovery is a necessary stage for most divorces.  It is the process of gathering and sharing information about different aspects of the parties going through a divorce or other Family Law issue.  There are some standard steps that attorneys often follow, written questions, requests to turn over specific documents and requesting other information and basic information about the witnesses and issues that are expected to be used in a trial.  Sometimes one or both sides will want to take a deposition of various witnesses.  That involves having a court reporter and doing an audio and/or video recording, usually with a typed transcript of the questions and answers.

Attorneys must decide not only which discovery processes to use, but how formal to make the process.  In many divorces, informal discovery can be perfectly adequate.  Informal discovery can be faster and cheaper than formal discovery, but there is also a risk that something may be overlooked, although that can also happen in regular, formal discovery.

In Tarrant County divorces, when the attorneys know and trust each other, informal discovery is often done.   

Just like in some diplomacy, however, we generally follow the approach of "trust, but verify".  Here's a way to do it:
  1. Each side determines what information they need and whether they will  need an expert or some other third party.  The parties figure out what specific items they need to request.
  2. The two sides will talk about what they have and what they can provide to the other side.  Talking with the other side during informal discovery is a rational, common-sense way of working that doesn't often occur during formal discovery.
  3. Sometimes, the two sides hire a joint expert to give a value or some other opinion.
  4. Each side will almost always prepare a sworn Inventory and Appraisement listing all the assets and liabilities, along with values.  It also is a way to confirm that everything has been identified and listed.  In other words, it states that there are no undisclosed assets and liabilities.
  5. At mediation or in settlement, we often also request that the other party sign a statement under oath saying that everything has been disclosed.
If informal discovery doesn't work out, the parties can always resort to formal discovery, so there is a back-up.

The alternative to informal discovery is to start with a costlier, slower and more labor-intensive process, formal discovery.  Sometimes, if the attorney is unknown or not known to be  trustworthy, or if the party is untrustworthy,  formal discovery is the only way to go.

Caveat:  There may not be an option to do informal discovery if the other attorney has been hired and directed to make life difficult for your client.  If there's an angry party on the other side who wants to punish or hurt their spouse, there won't be a choice.  Unfortunately, the people wanting to use that strategy often don't realize the extra cost that involves for themselves as well.  You just can't make people be reasonable.

Saturday, April 7, 2012

Why You Shouldn't Be a Jerk!

Some people just can't help it.  They are jerks.  I prefer to think that anyone and everyone can behave well if they choose to.  For some, it takes a lot of concentration, and then some occasional backtracking to undo an initially rude or inappropriate reaction.  I believe that almost everyone can act right, if encouraged and reminded, and if they understand it is in their own best interest.

In general, everyone will need a favor, such as getting a hearing reset, an agreement to allow more time to respond to something, leniency or the benefit of the doubt.  Jerks don't often get the favors.  

Here are some specific ways being a jerk can affect you in the legal system.

1.  You may face stronger opposition from the other side.  They are less understanding or forgiving.  If you (figuratively) slap them in the face, they probably won't turn the other cheek in litigation.  Mad people fight back!

2.  The Judge won't like you.  The Judge is bound to follow the law, but he/she is not a robot.  There will always be matters, especially in Family Law, where the Judge is allowed a wide range of discretion to decide outcomes.  You need the Judge to like you when he/she is deciding property division, allocation of bills, support, visitation and other issues. Like it or not, most legal decisions are not precise applications of the law which produce mechanical results.  Most decisions are discretionary.  You don't need to fight the Judge.

3.  Other important officials who don't wear robes may not like you.  Humans fill the roles of court clerks, court coordinators, bailiffs, child support office workers, employees of the Domestic Relations Office and employees of the Texas Attorney General's Office.  You may not ever think about some of them, but they see, know and talk about you (that's not just paranoia) and they can influence how easy or how difficult your life is in the future.  You are better off if they don't remember you, because they normally just remember the "problems".

4.  Your own attorney may not stick around.  Most attorneys are busy.  Very few want to waste time and put up with aggravation from a difficult client.  

5.  It will be harder to find witnesses and allies willing to help you out.  Forcing someone to come to court and testify is usually a bad idea.  Yous want voluntary witnesses.  You want people coming forward and wanting to help you out.  An ungrateful, vindictive, mean person usually has a hard time getting help from others.

Bonus Point:  The more you fight, the longer it will take and the more it will cost.  Don't complain about those things if you choose to be a jerk!