When you are involved in a contested divorce or custody battle, you will likely need to find out about the other party’s finances, living accommodations, employment, and other essential facts. That is why it is important to know about the discovery process.
Discovery can be just what it sounds like – a chance to “discover” new information about the other party that you did not know before. More importantly, the discovery process is a way to make the other party commit to a particular line of testimony and evidence so there aren’t too many surprises at trial.
What does discovery look like in real life? If you’ve never been involved in a case that had discovery, you should know the three types of discovery requests that are used in Virginia and most other jurisdictions. There are Requests for Admissions – questions answered with an “admit” or “deny;” interrogatories – more detailed questionnaires often answered in short answer paragraphs, when applicable, but usually require longer, more detailed answers; and Requests for Documents, which are, simply put, requests for documents.
Discovery plays an extremely important role in family law litigation. This is because these types of cases – such as custody, divorce, and child support – are often very fact-specific and require evidence of family finances, the day-to-day interactions between the parties, and a plethora of other facts that come in to play under the various factor-based tests endemic to family law.
Because this field of law is incredibly nuanced, the family lawyers at Keithley Law, PLLC, PLLC have compiled a list of tips to further your understanding of the discovery process and Virginia family law cases.
Tip#1: Know Your Deadlines
Have you been served with discovery? Start the clock, because you have 21 days to respond or object. If the case just started, however, and the discovery was served together with the complaint, you get an extra week, or 28 total days, per Va. Sup. CT.R. 4:8. Either way, it doesn’t leave you much time to carefully prepare, collect documents, or review and answer the questions in a way that doesn’t prejudice yourself at the actual trial.
Failure to respond in time ca result in serious consequences for your case, such as being sanctioned, which can be a court-ordered fine paid to the other party, the other party’s attorney, or the court (VA. SUP. CT. R. 4:12). An experienced family law attorney, however, will have the skills, know-how, and expertise to get the job done timely, efficiently, and in a way that strengthens your case (instead of giving away the family farm).
Tip #2: Know Your Objections
Did you know that you might not have to answer a discovery question, provided you object to the question within a reasonable time frame and provide a valid reason for the specific objection? But what is a valid reason to object? The answer is complicated, but there are statutes and case law that set the parameters of what kinds of questions don’t have to be answered. A family lawyer can spot an objectionable question right away – but that comes with experience.
Tip #3: Know Your Privileges
In Virginia, some communications, writings, and documents are privileged because they are confidential, and do not have to be produced in discovery. One good example of this are conversations you have with your lawyer discussing case strategy and trial preparation, as well as any notes that you or your attorney took during these conversations.
It is not enough, however, to merely state that the information sought is privileged; you have to “describe the nature of the documents, communications, or things not produced…in a manner that…will enable other parties to assess the applicability of the privilege or protection” (VA SUP. CT. R. 4:1 (b)(6)(i).
Tip #4: Understand Waiver (You Snooze, You Lose)
Suppose that you were served with discovery, you believe that you responded the best you could, but then realize the following:
- You answered something that you could have objected to;
- You answered something that you could have objected to based on privilege; or
- You didn’t answer something (left it blank) when you could have objected.
What is the result?
The result is often “too bad” for your case per VA. SUP. CT. R. 4:11 (also see Smith v. Smith, 254 Va. 99 (1997)). Failure to object, or to assert that the information sought is privileged, constitutes waiver. Waiver basically means, “okay, I will allow it, even if I didn’t have to, and it could hurt my case.”
Additionally, simply leaving the response blank – like missing a discovery deadline – can result in being sanctioned (see supra tip $1). When you have an experienced family lawyer on your side, you can avoid these pitfalls.
Tip #5: Work with Your Experienced Family Law Attorney
At Keithley Law, PLLC, PLLC, we can guide you during the discovery process, streamline the procedure, and collect the answers we need to effectively respond to discovery (and to propound it ourselves). We also offer tips and strategies to help clients get their hands on the often hundreds (if not thousands) of pages of records they need to provide to respond to a document request adequately. Our skilled legal team can deconstruct this complex process into a few easy steps, thereby reducing your stress and anxiety. After all, an efficient, skillful approach to discovery can reduce litigation costs and contribute to a strong outcome.
Have you just been served with discovery? Are you involved in or considering a divorce or custody case? If so, contact the experienced family lawyers at Keithley Law, PLLC, PLLCby calling (703) 454-5147. We can guide you through the discovery process and save you time, money, and stress.