Sunday, December 13, 2009

Discovery in Divorces

Many of my clients have never heard of Discovery before their divorce case. Many are unprepared for the incredible amount of work it takes to get through the discovery process. Perhaps this brief overview of the Discovery process will help prepare those of you for what is a very important part of many divorce cases.


After the original petition for divorce is filed and before you go to court, you will have to make your way through the discovery process. Please understand that discovery only takes place if the divorce is being contested or you and your spouse are unable to come to a meeting of the mind during settlement negotiations. This is the phase of your divorce that will often cost you the most, financially and emotionally. So, to save money and the stress generated by a long drawn out battle it is best to show all the integrity you can during this phase of the divorce process.


"Discovery" is a legal mechanism designed for gathering information about either party to the divorce. If you use discovery correctly, you can find out what arguments the other party intends to use at trial and prepare a better defense. The discovery process can be time consuming, expensive and, at times frustrating. That makes the process worth the effort. Modern discovery rules are based on the idea that mutual knowledge of all facts and all relevant evidence before trial is essential to a just and speedy disposition of litigation. Discovery affords an opportunity to formulate, define, and narrow the issues, to obtain evidence for use at trial, and to obtain testimony of witnesses unavailable for trial. Done right, discovery usually prevents any "Perry Mason" moments from occuring in the courtroom.


Supreme Court Rules 201 – 222 and certain complimentary sections of the Code of Civil Procedure (CCP), 735 ILCS 5/1-101, et seq., control pretrial discovery after a lawsuit is filed. The scope of discovery in Illinois is broad and includes all matters that are admissible in evidence or that could lead to the discovery of admissible evidence. Information that is protected by privilege may not be discoverable. Great latitude is allowed in the scope of discovery. Discovery is relevant if it tends to prove or disprove a matter in issue. S.Ct. Rule 201(b)(1) requires full disclosure, with some exceptions, of all matters relevant to the subject matter of the suit. Pretrial discovery presupposes a range of relevance and materiality much broader than that of admissibility of evidence at trial.


Rule 201 lists the discovery methods that are described more fully in the following rules. These rules provide for the following discovery methods:


·         Depositions on oral examination. The lawyers will sift through the interrogatory answers and documents- and then question the spouses in person under oath at what is called a deposition. Other people who have relevant information, such as neighbors, friends, relatives, accountants, or other witnesses, may also be questioned at a deposition. A deposition takes place in the presence of a court reporter, who later transcribes what was said into a typewritten booklet.
·         Depositions on written questions.
·         Written interrogatories to parties. Each side sends the other lengthy lists of questions called interrogatories, which have been drafted by the lawyers and which must be answered under oath. Interrogatories are composed of questions about finances, assets, pensions, and similar financial issues.
·         Discovery of documents, objects, and tangible things. Through their lawyers, the spouses can also ask each other to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, and the like.
·         Inspection of real property.
·         Physical and medical examinations.
·         Requests to admit.
·         Discovery before suit to identify responsible persons and entities.



Usually the lawyers are looking for hidden or "wasted" assets, in order to determine how much money, earning power, and other assets each spouse has (or had) so that they can be divvied up. In contested custody cases, the lawyers will be looking for evidence that the parent on the other side is not fit or is not the best parent to have custody.

Trial preparation efforts are important because the information that comes out at a trial depends very much on how well the lawyers understand and present the facts-both favorable and unfavorable-to the judge. Even the best case can be lost if the lawyer is unprepared, careless, incompetent, or otherwise ineffectual.  Regardless of whether you ultimately settle your case or litigate it to the bitter end, trial preparation is essential. Lawyers who do not prepare for court hearings or trial (because they expecting a case will settle without a trial) turn their clients into sitting ducks. If the other side senses that you or your lawyer wishes to avoid a trial, cannot afford one, or is not preparing for one, you will be at a distinct legal disadvantage. In addition to being ill-equipped for a possible trial, the unprepared lawyer cannot negotiate a settlement from a position of strength. If you come to the peace talks with no bombs or bullets, will anyone listen to what you have to say? Keep in mind, a lawyer who is unprepared for a hearing or trial is inviting the opposition to take advantage of his or her client.

Because trial preparation is time-consuming and expensive, you or your lawyer may be tempted to cut corners. Such a move could be penny-wise and pound-foolish, however, because if your case is well prepared, you should be able to proceed from a position of strength to fashion a satisfactory settlement instead of going to trial.





This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.




Jon D. McLaughlin, Esq.

Allison & Mosby-Scott

210 1/2 North Williamsburg Drive

Bloomington, Illinois 61704

Phone: (309) 662-5084

Cell: (309) 319-6206