Generally speaking, discovery is the process by which you and your opposing party to a legal case can obtain information from the other party in preparation for a trial. In many divorce or child custody cases, requests for discovery will be sent along with an Original Petition. Discovery is an important part of a case and can be essential in developing strategies to be used in a trial. On the other hand, discovery can be used to help both sides to your case arrive at reasonable settlements in mediation rather than pressing on to a trial.
How extensive will the discovery process be in your case? First, we would need to consider you and your opposing party's willingness to request specific pieces of information about the other. Your financial, social and familial relationships with each other are all relevant in a family law case. Your attorney can craft requests for documents, responses to questions and other information that can take a great deal of effort to produce. However, if you and your spouse have had little in the way of financial problems, marital infidelity or other problems then your discovery process may be more informal or simple than other folks.
Next, how complex (or simple) your case it would impact how extensive the discovery process would be in your case. If you and your spouse are in agreement on how custody is going to be situated after your divorce as far as where the kids will live primarily, then that is a huge advantage to you all. The more contentious your case is as far as custody is concerned, there is greater cause for extensive and detailed discovery. Add in issues like family violence and substance abuse and you have a potentially combustible situation that may call for detailed discovery to be done.
Finally, some attorneys will see to it that a great deal of discovery be undertaken even if the situation does not necessarily call for it. My advice would be to talk to the different attorneys that you interview prior to starting your family law case in order to make a determination as to what amount of energy he or she plans to put into discovery. Many cases need for discovery to be conducted. Many others do not, or at the very least call for a minimal amount to be done. Don’t put yourself in a position where you are paying your attorney to go on a wild goose chase that is unnecessary and unjustified.
What to do if you are a father who wants primary custody of your child?
Depending upon whether you are a mother or father, there are different tactics or strategies that you can implement in your case to provide you with an advantage in the area of child custody. How much you are able to see your child as well as the rights and duties you have in conjunction with them is the most important part of any family law case. Many fathers come to our office with questions about how they can put themselves into situations where they are able to successfully argue for primary custody.
We can talk about all the fancy legal jargon and strategies under the sun, but ultimately what you are needing to do in your family law case is that you are a better parent than your wife. It may seem strange to break your case down to this level, but it is the truth. This does not mean that you need to show that you are the father of the year, or that your wife is a degenerate. It only means that you must present yourself as the more suitable parent to being named as the primary caretaker of your kids.
It is not uncommon for judges to be confronted with a choice between the lesser of two evils when it comes to deciding whether a mother or father should be named as the primary caretaker of the kids. Hopefully, this is not the case with you and your family, but keep in mind that you do not have to have a perfect record as a dad to be named as the primary caretaker of your child.
The basics of a family law case break down according to your being able to present the strengths of your case and simultaneously being able to weaken the evidence set forth on behalf of your opposing party. A lot of this will be in the hands of your attorney who will be guiding you throughout the life of your case.
Who will you select to testify in your family law case?
Part of building a successful case strategy with your attorney is working with him or her to build up a strong list of potential witnesses for your temporary orders hearing or trial. Witnesses are people that are able to testify on your behalf in a courtroom in order to add to the evidence that you are presenting to the judge. Witnesses can be people from your family, your community, your child's school or anyone else who has knowledge of you and your family. Expert witnesses can also be called who will be able to testify about their experience or knowledge in a certain field relevant to your case.
From the outset of your case, your attorney will have asked you to compile a list of folks who have direct knowledge of you and your family. Not all of these people will be called to testify in a hearing or trial, but your attorney can help you to make decisions regarding this subject. You want to use these witnesses to present information but also to project an image about you. If your witnesses seem dishonest, unpresentable, or insincere that weakens their credibility and your own.
You do not want to select people who have no direct experience or knowledge of your family. Those people who have interacted with you, your spouse and your children a great deal are the best options when it comes to witnesses.
Is it necessary to have a specific number of witnesses?
In large part, the answer to this question depends upon how many good witnesses you have available to you. In some cases, your judge will not allow enough time in your trial to have all of your witnesses testify. You will likely be given a roadmap at the beginning of your trial from the judge on how much time you will be allotted to present your case. You and your attorney will need to then make a decision as to what sort of case you want to present and what witnesses you will choose to call.
What is a deposition, exactly?
A deposition is an opportunity for your attorney to ask questions of any potential witness that your opposing party may call in a trial- including your spouse. Your attorney can learn a great deal about the opposing party by asking him or her questions in a deposition, or any of their witnesses. You can learn what the person will potentially be testifying to in a trial and can also learn more about their case by obtaining important information.
In deposing your opposing party in a divorce case, you can find out what your wife plans on testifying to on a variety of subjects. This can help guide you as far as what you want to request in further discovery questions or even whether or not you want to pursue this case all the way to a trial. Sometimes you will be confronted with unreasonable demands, accusations, and allegations from a spouse in your divorce. You may find that those allegations are baseless and are obviously so to a judge. However, if your spouse's testimony is credible that can present challenges to your case.
Of course, your spouse or any other witness can change their testimony in between the time of your deposing that person to your trial. However, if this occurs then that person could and should lose a great deal of credibility with the judge. This is because that deposition testimony can be shown to the court (if it was videotaped) or at the very least their testimony can be read from the deposition to show any inconsistencies or changes that were made in the testimony.
How honest does the witness seem while being questioned?
This is something that you cannot learn from reading the deposition transcript alone. You will need to be able to get a first-hand impression of how the witness presents him or herself as well as the content of their answers. Does the person seem like they cannot keep their emotions under control? Are their answers nonsensical? Or does the person come off as a polished witness who is capable of providing compelling testimony? Seeing the person issue responses under oath is the only real way to find this out.
Getting down to the facts of your case- depositions can provide you with information
Finally, depositions allow for parties to be able to obtain more information about their case. If you have been unable to access information from any other source, a deposition may provide you with the names, addresses, whereabouts and other critical details that have been missing from your case to that point.
What you learn in your deposition could impact the remainder of your discovery phase. You may need to follow up on information that you learned in the deposition. Specific bits of information like the phone numbers or addresses of potential witnesses, or financial documents. What a deposition also does is supply your case with facts. Those facts may work in your favor or against you, but regardless you should be operating from a better position as far as knowledge is concerned after your hearing than before.
What to expect if you are being asked to testify in a deposition
If you are the subject of a deposition, you will likely need to go to the office of the attorney who works for your opposing party. That attorney will have you set up in the conference room in their office. Your attorney, a court reporter, and the other party's attorney will be present. If your attorney has asked the opposing party in your case to come in and testify then he or she will likely be testifying immediately after or before your own deposition.
In large part, the personality and demeanor of each attorney will drive how your deposition proceeds. Many attorneys are laid back and informal in depositions. They will make it seem like you are on a walk in the park while you are being questioned. Other attorneys will attempt to intimidate you into giving the answers that he or she wants to hear. In reality, some attorneys feel that obtaining information from you by being friendly is the best method to choose. It all depends on the type of case you have and the type of attorney sitting across the table from you.
We will continue to discuss depositions in tomorrow's blog post. Specifically, we will lead off by taking note of what you can expect in your own deposition as well as the sort of questions that you will be asked.
Questions about the information contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are ready and able to meet with you six days a week for a free of charge consultation. These consultations are a great opportunity for you to ask questions and receive feedback about your particular circumstances.
Our office prides itself on serving the people who live and work in our community. We provide representation across southeast Texas to men and women who want to achieve results in whatever family law case they are involved in. Thank you for your time and consideration.