WHAT IS DISCOVERY?

“Discovery” is a phase of litigation in which information is sought and exchanged. Since the divorce process is one type of litigation, discovery occurs in Probate and Family Court cases as well as cases in other courts. The discovery process is governed by various procedural rules that are similar, but not exactly the same in every court. Types of discovery include, Interrogatories, Document Requests, Depositions, Request for Admissions, and Subpoenas.

Interrogatories are written questions that require written answers from the opposing party. Document Requests are a list of documents one party hopes to seek from another, but only include documents that already exist; there is no obligation to create a document to satisfy the other party’s curiosity. Depositions require the presence of a party, non-party, or business representative to answer questions asked by the opposing attorney that are recorded in a transcript scribed by a court reporter. Requests for Admissions are a list of facts that the opposing party must either admit or deny. Subpoenas are a legal process by which a party to the divorce (i.e., husband or wife) can get documents from third parties (e.g., banks, employers, etc.).

Each type of discovery has its benefits and disadvantages. Cost, time commitment, likelihood of achieving results, and the information targeted are some factors that govern the strategy decision of which discovery methods to use. Interrogatories, for example, can be a useful tool, but I find that a deposition, while more expensive, yields better informational results. A wily party can be evasive in his written Interrogatory questions, but is more likely to answer when under oath and facing an opposing attorney in a deposition because an inquiring attorney can doggedly pursue the answer. A well-written Document Request can yield helpful results, but an uncooperative party will refuse to give incriminating documents, intentionally or inadvertently. Acquiring documents from banks and employers directly yields more complete documents because the third party does not have the same motive to withhold information. Requests for Admissions can be a very useful tool if the fact you seek admitted is perfectly stated, and admitted. However, a person looking to avoid a damaging admission will try very hard not to answer.

Future blogs will provide more about discovery strategy during litigation as well as ways to organize and access the information collected.

Best regards,

Hindell Grossman
Grossman & Associates, Ltd.
617.969.0069
November, 2012

DEALING WITH INCIVILITY

The Issue:

Rule 1.3 of the Massachusetts Rules of Professional Conduct states that all attorneys “should represent a client zealously within the bounds of the law.”  While some lawyers believe zealous advocacy is necessary to represent a client effectively, others believe it is an excuse for attorneys to be uncivil.  In fact, many states, including New York and New Jersey, have removed any reference to zealous advocacy from their ethical rules, suggesting that zealous advocacy is not encouraged.

Litigation style plays a part in this as well.  Some attorneys build their careers on a reputation as aggressive and relentless, even priding themselves as pit bulls.   These lawyers presumably believe this aggressive behavior will be successful in the courtroom and attract clientele.   However, studies suggest this this style is counter-productive and inefficient.  Andy Mergendahl of The Lawyerist opines, “To be an effective lawyer, you need to win people over. You do that by being prepared, courteous, and firm. You don’t do it by being aggressive.” (http://lawyerist.com/aggressive-lawyers-often-finish-last/).  It also seems that clients have clear preferences about their attorney’s style.  Some want pit bulls.  Some want calm professionalism.  Some want big firm images and some want some small firm intimacy and service.  Some want an amicable collaboration and some want to declare war.

The Recommendation:

So how do we deal with situations where the other side is employing “Rambo” or “Sherman tank” tactics?   We think it’s important to stick to the plan and not let a hostile party dictate the way the case is handled.  While aggressive, rude behavior may be infuriating and feel abusive, it does not require that we respond in kind.   Doing so will perpetuate the behavior, and at worst, drag us into an unnecessary battle.  Our ideal approach is to remain calm, polite and professional, while also firm and confident in our position.  Being pushed into war seldom turns out well and makes a high conflict situation substantially more stressful.

MAKING A NEW LIFE

The Analysis:

What do you want next? The world is your oyster.

The Recommendation:

This is your chance to start again. You have the benefit of your life’s experiences, both good and bad.  Your responsibilities are different now than when you were in your 20s, but your options are greater too.  Think about the things you’ve always wanted to do and make them happen.  You are in charge.

Get help to make this plan if you need.  This kind of life change can feel overwhelming.  In addition to therapists, there are executive coaches, career counselors, financial advisors and others to help guide you.  Make short term and long term financial and personal goals.  Put the divorce behind you and move on.  Make time for yourself, to socialize and exercise.  Eliminate the obstacles in your way.  Ask select people for help and advice.  Be an example to your children and others, but mostly be what you’ve always wanted to be.