By: Jeremy P. McNinch
One of the most burdensome parts of a family law case is the discovery process. In this phase of the case, the parties exchange information about the evidence they have in support of their claims or defenses. The range of questions can be very broad, and in some cases, they are very personal. Clients ask me all the time, “Do I really have to answer that?” In most situations, the answer is yes.
The rules of court allow discovery of anything that is not privileged, as long as it is “reasonably calculated to lead to admissible evidence.” In English, that means anything that might touch on what the parties are trying to prove in the case. There are certain limits on the number of questions a party can ask, how they can ask the questions, and so on, but discovery is generally very liberal.
The rules are liberal for a reason. Parties are entitled to know what they are up against. I have had cases where the other side simply refused to produce information. That might have been the way things were done back when Perry Mason was in his heyday, but that is not how it is anymore. Surprise witnesses and mystery documents that are brought up for the first time in trial make good TV, but in real life, they make things unfair.
If your lawyer asks you to complete discovery answers, do it immediately. Don’t wait around. If you don’t give your attorney full answers, there can be major consequences when you get to trial. Key pieces of evidence might be excluded due to discovery violations. You could be found in contempt of court and ordered to pay sanctions.
The court system is an adversarial process, but intentionally hiding evidence doesn’t work anymore. The rules don’t allow it. If your lawyer gives you a ton of questions to answer, you should follow his or her instructions even if the questions make you think, “do I really need to answer this?!”