DISCOVERY AND THE OBLIGATION OF PARTIES TO SUPPLY REQUESTED DOCUMENTS
Is your Lawyer billing you hourly? Choose your lawyer carefully and read this article to find out more. One of the most frustrating matters in litigation, and especially family litigation, is the use and misuse of what is commonly called discovery What is discovery as it relates to Divorce and Family Law? Essentially it is the period in a litigated matter where the parties are obligated to answer questions and provide requested documents to the other party in an effort that is supposed to prepare both sides to make relevant arguments at trial. In essence, you are providing the evidence to be used or showing that arguments are irrelevant well before these arguments are argued in the court of law. The rules of Superior Court and Civil Procedure regulate and provide the requirements and guidelines for this period in the litigation process; and, as I said, nothing in the process is more frustrating for clients and attorneys.
This is especially true in the domestic arena when the parties are usually extremely aware and educated in the relevant matters. They made purchases together, made debts and payments together and were aware of most accounts involving retirement, checking and savings. They had intimate financial and personal relations, each party is well aware of most issues needed to complete a matter. Once these issues are disclosed an attorney will seek supporting documents, statements through depositions and admissions to prove or disprove claims and/or verify the existence of accounts and balances. Does not sound complicated, does it?
IS YOUR ATTORNEY PLAYING THE DOCUMENT WAR WHEN IT COMES TO DISCOVERY?
The problem arises when the discovery and the issues around it take on a life of their own and the litigated matter does not become the litigated matter but a supplemental matter between attorneys. This is not only extremely frustrating for the clients who must spend hours seeking to comply with the requests from the other side but also the attorney who must expend multiple hours dealing with the process. Did I say the attorney was spending multiple hours dealing with this process? I meant the FLAT FEE ATTORNEY who does not bill nor benefits from multiple hours of borderline frivolous work inherent in the excessive and redundant seeking of information.
The problem with the rules of discovery in litigated civil domestic matters is that they are applied in the same manner as the rules in all civil litigation. What I mean by this is that when two entities are suing one another over a breach of contract dispute or corporate transaction these cases may go on for years with thousands of pages of necessary documents and research into the inner workings of an entity and intent of the parties; however, in a domestic matter 95% percent of the matters litigated involve a transparent partnership and the relevant information necessary is common knowledge. This is why all courts require the completion of a domestic relations financial affidavit, which is usually very complete.
Still, I cannot tell you how many times I am forced to spend months on matters that should involve weeks because the discovery process is prolonged.
The common rule is that the discovery process should take no longer than six months after the answer is filed; yet, this is often not the case. Often I have matters in which my client seeks only settlement within Georgia equity and has provided all relevant documents freely, and the other side still wants to do a deposition of the same issues, or they seek third-party subpoenas for documents already provided, or they insist there are more documents needed. At this point I have a decision, do I file a protective order and seek relief from the court to suspend discovery. Often the answer is no. The problem with the rules of discovery is that they are interpreted very broadly, and this means that if I delay a matter and follow a side path with attorneys into battles that do not promote resolution I will wait weeks to argue my protective order motion and 9 times out of 10 if there is any relevance, at all, the court will demand compliance. If at any time during the process matters do not comply with my client will face motions to compel and once again we head down that same path, and my client faces sanctions and yet more delays in an already devastating process.
FLAT FEES CAN BENEFIT THE CLIENT, NOT SO MUCH THE FLAT FEE ATTORNEY DOING EXTRA WORK BECAUSE OF THE OPPOSING ATTORNEY!
Discovery is a very important part of the process and should be complied with as it allows litigation take place and be a realistic forum to solve problems and allow the judge or jury to make an informed decision, but often it is overly burdensome and misused. This is when the client consumer must be aware of their matter and be involved. I cannot tell you how often I see a pattern of misuse discovery that is not warranted but within ethical guidelines. Often attorneys send out discovery requests with the complaint. These are not simply financial demands, reasonable in a domestic matter, but twenty page “boilerplate” documents with generic demands sent automatically. Buyer beware!!! If your attorney is sending this much work out before a matter is even known or understood it is just not your soon to be ex who will be billed for this work, you will do as well. The discovery should be relevant and sought for substantially relevant purposes. If all information has been disclosed and both parties are being forthright, why is a deposition necessary? Remember much of this process is facilitated by paralegals who bill dozens and dozens of hours for an office, is your attorney really paying them $325 or more per hour as the invoice states.
Litigation for the sake of litigation is a very dangerous trend in an overcrowded field of law and it is shameful that those with low assets tend to get a divorce that is resolved quickly and those with expendable assets, ironically, tend to have prolonged divorce matters. It is also ironic that, in my experience, most prolonged matters burdened by excessive discovery usually come from the offices with the largest overhead.
Attorney Sean R. Whitworth is located in Marietta Ga. He specializes in Divorce & Family Law Matters and has over a decade of experience. He charges Flat Fees for his services. Contact us at 770-490-0921