1. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved The Discovery Process in Family Law Chapter 12

2. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Discovery Tools Paralegals will help prepare: – Interrogatories – Requests for the production of documents (and things) – Requests for physical & mental examinations – Requests for admissions – Depositions

3. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Interrogatories Limited to the parties of the lawsuit Served directly upon the party Must be answered under oath Objections to specific interrogatories may be lodged: – Irrelevant – Overbroad – Duplicative – Privileged Spousal Attorney/client Physician/patient Therapist/client Cleric/penitent

4. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Interrogatories, cont. Useful for identifying: – Location & value of marital assets Bank & stock accounts Real property – Separate property – Employment information Income Bonuses Health & life insurance Pension information Non-monetary compensation

5. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Interrogatories, cont. Non-financial information, used in custody determinations: – Spouse’s roommates, or details of cohabitation – Details of spouse’s medical treatments – Children’s medical care – Day care providers

6. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Preparation Paralegals may be responsible for drafting interrogatories – Review the file – List any gaps in information – Be sure the client can’t provide the information – Meet with the client to review information & draft proposed interrogatories – Review draft interrogatories with attorney & revise, if necessary May be sent directly to opposing party, or may need to be filed with the court, depending on the jurisdiction.

7. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Response to Interrogatories The paralegal may be in charge of monitoring the opposing party’s response to the client’s interrogatories – Check the Rules of Court for response times – Check for any requests for extensions – Determine whether there is an agree-upon time for response – If there has been no communication at all: Notify the supervising attorney May need to prepare a Motion to Compel Discovery

8. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Responses, cont. If the time has elapsed without an objection to the interrogatories being filed, they must be answered If there are objections (or motion for a protective order), they can be answered by a Motion to Compel Answers, as well A review of the answers will fill in factual gaps and may trigger follow-up through requests for production or admissions

9. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Preparations of Responses Review the interrogatories with the supervising attorney to identify potential objections May send a copy of interrogatories with a cover letter to the client, requesting preliminary answers in order to help prepare for the meeting Meet with clients and help them prepare to answer truthfully & accurately under oath – Can help client articulate accurate responses – Will review answers to remove information beyond the bounds of the inquiry Prepare the final document for review by the attorney and, after final revisions, the client will sign under oath, administered by a notary or officer of the court. Sent to the opposing counsel, or filed with the court, per jurisdictional requirements.

10. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Answering Interrogatories Information may be within the client’s control, but not easily obtained: – Health plan details – Pension or insurance information Paralegal will help client access this information by obtaining releases and identifying the proper contacts, or helping the client make the contacts

11. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Requests for Production There will be necessary documents under the control of one party, and the paralegal will draft a request to inspect these: – Tax returns – Canceled checks – Tuition & camp fee information – Health insurance plans – Insurance policies – Driver’s license – Pay stubs – Titles to cars, boats, other vehicles, etc. Production required unless there is an objection

12. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Objections to Requests for Production The requesting party may have asked for privileged or confidential information The responding party may not have access to or know where to find the requested document There may be requests to reveal intellectual property or protected business information, which should be discussed with the attorney

13. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Follow-up on Requests for Production The paralegal can compare the documents submitted to the original requests Any documents the were not produced should be reported to the attorney, along with any objections tendered by the other side The documents received may open up new areas of inquiry & trigger additional requests

14. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Cataloging Results Paralegal will organize & summarize the results: – Chronologically – By category of expenditure Food Clothing Shelter Utilities Car expenses Taxes School, church, children’s activities Entertainment, etc.

15. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Responses to Requests for Production As in interrogatories, review requests with the attorney & send a copy to the client for a preliminary work-up The attorney will identify any objectionable requests, and the paralegal will assist the client in obtaining the necessary information Some information may need to be shielded by a protective order or confidentiality agreement

16. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Motion for Protective Order/ Approve Confidentiality Agreement May require a motion, affidavit and/or brief or memorandum of law in support of the motion, and an order The paralegal may need to research the basis for the request and the legal standard required for suppressing the requested information

17. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Physical or Psychiatric Exams May impact on the custody or unsupervised visitation of children There may be a question of paternity Physical or mental condition may be the basis for claiming permanent alimony or additional property awards – High costs of treatment – Inability to work

18. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Medical Examinations By Request – Automatically granted after 30 days without objection – If granted, opposing party is contacted to schedule the exam within a reasonable time – Failure can result in a motion to compel – Objections will result in a negotiated compromise or a court hearing Some jurisdictions require a motion/order

19. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Response to a Request Attorney may wish to discuss it with the client prior to a response May result in an objection or negotiated parameters Opposing counsel should be notified of the limitations proposed, or receive memorialization of the agreed upon limitations

20. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Client’s exam Once all objections and parameters have been dealt with, the paralegal may arrange for the appointment – Notify client – Remind client – Make sure the firm receives a copy of the results – Be sure the opposing side has notification of compliance

21. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Paternity Exam Usually no grounds for privacy objection based upon unnecessary intrusion, since it only requires an oral swab There may be objections based upon the “psychological parent” theory, that it would not be in the child’s best interest to disturb the parent/child relationship – Adds to the disruption of the child’s life – Client will continue parental obligations under presumption of paternity

22. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Requests for Admissions If not refuted, deemed admitted May object and – Compromise – Have a court hearing Review possible requests with attorney, draft, and review final copy Once filed, track the timeline for responses May produce stipulations: modifications of requests that result in admission

23. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Response to Requests for Admissions Review with the attorney Send requests to the client Set up meeting for client & attorney Monitor the reply deadline to avoid inadvertent admissions If there are objections, they must be filed and a hearing scheduled – If there are hearing conflicts, a continuance can be sought, and the hearing should quickly be rescheduled

24. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Depositions Usually only necessary in property or sole custody disputes Available for parties or non-party witnesses Oral or written questions, answered orally, under oath, by the deponent A court reporter is hired to make a record and, in many cases, swear in the witnesses After being worn in, the deponent will be asked questions on direct exam by the deposing party’s attorney.

25. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved DIRECT EXAMINATION CROSS-EXAMINATION REDIRECT Scope of Examination

26. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Expenses Two attorneys (possibly paralegals) are present, each with an hourly rate Expert witness may charge for depositions Non-party witnesses may be paid for travel expenses If deposition is out-of-town, travel expenses for the lawyers need to be factored in

27. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Notice of Deposition Time & place – May negotiate for neutral territory (not in either law office) – Negotiate an exchange of information for the more expensive depositions Subpoena non-party witnesses – Confirm service – Duces tecum will include a list of documents that need to be produced at the deposition

28. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Paralegal Role Work out the schedule – Check with attorney & client – Block out proposed time on schedule Draft notice Arrange for site – Schedule rooms: Refreshments, restrooms, aural privacy – Be sure there’s copying equipment available Hire court reporter Send notice of Intent to Depose a Non-Party Witness

29. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Disclosure of Assets Documentation needed at the deposition needed to: – Identify assets – Value assets May be done without deposition Review in-take sheet with attorney Follow-up with client to identify possible assets Failure to comply with request can result in a contempt motion

30. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Contempt Motion Paralegal may draft the motion which may include sanctions & costs – Affidavit of fees & costs Based upon detailed accounting of attorney time Any court costs paid Limited ONLY to the time needed to enforce a valid order Court will award “reasonable” fees

31. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Preparation of Response May object to requests, supported by a memorandum of law May respond with information, signed by the attorney: – Lists assets (spreadsheet may be useful) – Copy necessary documentation of value

32. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved The Financial Affidavit Sworn statement enumerating assets: – Real property – Personal property Cash Cars Furnishings Stocks, bonds, CDs Art, jewelry, collections, etc., with appraisals

33. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved The Financial Affidavit, cont. Liabilities – Credit card balances – Student loans – Car loans – Mortgages – Court judgments Income, earned & unearned

34. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved The Financial Affidavit, cont. Expenses – Taken from the in-take questionnaire – May need to be transferred to court form Review with client Must be complete and accurate Reviewed & signed by attorney

35. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Upon Receipt of an Affidavit Review opposing side’s information with client to identify gaps Compare to file information: – Interrogatories – Requests for production, admissions – Depositions