- 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.
- 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.
- Sometimes, the two sides hire a joint expert to give a value or some other opinion.
- 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.
- At mediation or in settlement, we often also request that the other party sign a statement under oath saying that everything has been disclosed.
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.