THE KEY TO DISCOVERY

Previously, I discussed "Chapter 13:  Discovery" from the 2011 CT Practice Book.  At this point, I want to dig down deeper to the nuts and bolts of the process of obtaining evidence from your ex husband, or the opposing party in your case, however you want to say it. 

The key to getting this process right has to do with being a damn good secretary.  And let me stop here. 

Remember in the good old days of feminism, friends of mine used to say, "I won't learn to type, because then employers will just make me the secretary!" and there was this negative attitude about being a secretary.  Let me tell you how baloney all that talk is.  There are some very high powered basically secretaries called executive assistants who make substantial sums of money and they all know how to type and, what is more important, keep track of things.  You want to be as good as they are!

Maintaining an excellent filing system, keeping track of things, knowing where things are, this is the very core of a lawyer's practice.  If you can't be good secretary, then you can't be a good lawyer, and you sure as heck can't be a good self represented party. 

Begin now to develop these abilities, abilities which outstanding secretaries have known how to exercise for years. 

This is how secretarial skills apply to the practice of discovery.  When you begin discovery, you start out by submitting to the Court a "Motion For Disclosure and Production" in which you request certain documents (or whatever) from your ex husband and you give him 30 days within which to respond.  That's where the keeping track comes up. 

Once that Motion has been sent to the Court, you have to keep track of when the 30 days are up so if it goes to day 31 and you haven't received the documents you requested, you are right on time in going back to court to force your ex husband to reply with your reqest with a Motion to Compel.  In order to delay the process and make your life difficult, but sometimes truly for legitimate reasons, your ex may submit to the Court a "Request For An Extension of Time" asking for up to 30 to 60 days within which to respond to your request for disclosure and production, or else you may have a quick phone call with the lawyer from the other side and come up with an agreement for when the material will be produced, an agreement which you will imediately confirm in writing. 

Ordinarily, these requests for extension of time are automatically granted. Again, under these circumstances, you have to keep track of the time so that if your ex misses the next deadline, you are on track with an immediate Motion to Compel.  Sometimes, you may have more than one Motion for Production and Disclosure out there requesting different material, so you will have to keep track of the progress each one of them is making. 

Sooner or later, your ex will start complying with your requests and start sending in documents.  If he is a jerk, as so many are, these documents will arrive in dribs and drabs over a period of time.  This is done with the intention of annoying you intensely and messing up your efforts to obtain documents necessary to pursue your case, and getting you so mixed up you can't keep track of what you do and do not have.  So don't get too angry when it happens.  It is par for the course. 

Again, this is where your secretarial skills will come in handy.  It is so easy when you are getting documents in by dribs and drabs to lose track of what you have received.  Then when it comes to a really vital document in your case, you could have the opposing attorney say something to you like, "I already sent it to you." and you would have no way of knowing if you didn't make a careful note of everything that comes in from the opposing attorney in response to your Motion.  And if they say they have given it to you, and you have no evidence to the contrary, it can be harder than you think it is to get them to send you another copy.

One valuable bit of support you will have to assist you in keeping track is that when the opposing attorney provides you with the materials you have requested, he or she is required to submit to the Court, copy to you, a document entitled "Plaintiff or Defendant's (depending!) Compliance with Plaintiff or Defendant's (depending!) Motion For Disclosure and Production.  On this Motion your ex is required to list item by item exactly what he has given to you along with the document.  Again, you need to look at the documents that you have been given and check to see that the opposing attorney has truly given you the documents he or she has said were given to you. 

If the opposing side lies and says in the Compliance statement they submitted to the Court that your ex gave you documents you did not receive, you need to respond immediately with a Motion to Sanction the other attorney for the lies he told, and you need to file a Motion to Compel to insist that your ex provide you with the missing documents immediately. 

As you can imagine, with different motions for disclosure and production out there on your behalf, all with varying deadlines and extensions on deadlines, and various compliance statements that have to be verified meticulously, you end up with a lot of detailed work keeping track of what you have received and what you still have to receive. 

If you have a lawyer, this job can cost thousands and thousands of dollars, but if you do it yourself, it is just like preparing your taxes.  Annoying, but necessary, and rewarding when it is done. 

Where you can run into problems with discovery is when you allow the opposing side to pass documents to you informally in Court, or by dumping them on your desk without telling you, or sending it in the mail without a statement of compliance.  If they start to do that kind of thing, then there is ample opportunity later on for saying things like "I gave her the document, but she just doesn't remember." implying you are a nut case. 

Always provide some kind of receipt for anything you receive, copy for you and copy for the other party.  If you are facing opposition from the opposing side and they drag their feet on discovery, you can also send letters as well as Motions to Compel.  Then when the time comes for a Status Conference, you can trot out your Motions to Compel, as well as your letters, indicating you have made reasonable efforts to obtain compliance with your discovery requests, and this will give the judge a good impression. 

Remember, for any attorney, obstructing the process of discovery is a violation of professional ethics, so if you can track that obstruction well and present evidence of it effectively to the Court, you are one step ahead of the game. 

Also, keep in mind that delays in discovery can't be used as the justification for a request for a continuance of the date of trial.  So if you have arrived at the day of trial and the opposing side hasn't given you a vital document, but you have no clear track record of seeking to possess that document, the Court will just laugh at you when you complain.

Make sure no one has a reason to laugh when you enter a courtroom.  Make them afraid, not with swords or guns or a loud bullying voice, but simply with a neatly written list of when and what you received and did not receive and a list of motions and letters you sent in order to correct the problem.  In the Court system, secretaries rule the world.