Petition for discovery

[JNChell]

I received a 14 page petition for discovery from mom’s lawyer today through my lawyer. I’m overwhelmed. Do I have to answer these questions and give the information that is requested? We’re supposed to have an initial hearing to reinstate visitation. At least that’s my understanding. I thought mediation had been agreed upon. Her lawyer drafted a 14 page petition for discovery. At the end of it , he said that my answers were under oath. By who? I’m rattled and starting to feel like I’m not really going to be represented. I get paperwork emails from the paralegal. I’m getting very nervous. 14 pages. We’re supposed to be trying mediation. Should I call him myself and explain this outside of my counsel?

[GaGrl]

Call your lawyer and work it through him/her. You probably are not required to provide discovery that she does not reciprocal provide you. You can also decline to answer anything that is not relevant to the motion at hand.

Do not contact her counsel directly.

I'm sure others here have had discovery experiences.

[JNChell]

I sent my attorney’s paralegal the same concerns. Is this just how this goes? Is it really this crazy? What about the child? I feel like I’m living with her again.

[Skip]

Do not call her attorney. Most likely he won't want to speak with you because of Bar Association ethics. Call your own attorney.

Discovery is part of every lawsuit. Often mediation doesn't take place until there is discovery - both hers and yours.

Your answers need to be truthful as you are certifying them as truthful and if you are found to be lying, there are penalties.

You want you lawyer involved to guide you. Often the lawyer will narrow the scope of many questions by objecting to part of the question.

This is time consuming and tedious and it is important.

The point of discovery is to find information that she can use to support her case against you. Anything you give them (or withhold) can and will be used against you if it helps their case.

[JNChell]

How long should I wait for my lawyer to contact me and fill me in on what’s going on?

[Skip]

How long should I wait for my lawyer to contact me and fill me in on what’s going on?

Did you call him?

His timing will be based on the due date for the discovery. He has many cases and he is trying to balance his time.

When are the answer due?

[JNChell]

I didn’t call him. I have 30 days. I don’t know how to answer a lot of the questions. There are no viable answers to a lot of them. It’s a very intimidating thing to receive. S5’s mom wants me to pay her legal fees. She told me that if I want to see him again that I would have to take her to court. So it is.

[Skip]

Put a call in.

The discovery requires documents - start pulling those together.

Your lawyer's paralegal will take your drafts and answer the questions and then have you sign it.

[JNChell]

I don’t understand what you’re saying here.

[JNChell]

Contact her attorney? Or don’t? I’ve been told both here.

[Skip]

Contact her attorney? Or don’t? I’ve been told both here.

Everyone has said to call your attorney. Do not call her attorney.

[I Am Redeemed]

Do not contact her attorney. Her attorney is looking out for her best interests, not yours.

Part of your attorney's job is to help you answer these questions and to make sure that whatever info you disclose is also disclosed to you.

If you do not understand the questions or need help with them, that is what you pay your attorney for- to help you.

[kells76]

Hey JNChell, we've been hit with that, too, and yes, it was before mediation (as far as I recall).

This will be OK. Remember that lawyers will often say whatever their clients want. She can tell her L "Make sure to tell JNChell that unless he pays for my rent forever, and covers all my debts, and tells everyone he meets that I'm a saint, he'll never see Son again. Also, he's a lying chipmunk with a Pepsi addiction." The lawyer will say that in legalese in the paperwork. DH's ex said some nasty stuff about him. Apparently she was "astonished he could keep a job even when he'd been accused of sexual harassment, so because he had a job, he should pay her more". The SH accusation was false, she KNEW, and from a job a DECADE ago. And apparently hadn't been an issue with her until she thought she could get more $ from him that way.

Do you have a friend who could read through the docs her L sends you, before you do, and pull out pointless pages (i.e. false accusations, meaningless requests) so you can focus on what really needs to get done?

OK, back to the advice from the group.

You probably are not required to provide discovery that she does not reciprocal provide you.

Channeling my inner ForeverDad: DON'T let your L give her L all your hard work unless it's 110% guaranteed that she will give you the same. DON'T be "nice" or "early" on this one. Tell your L that you want him/her to meet with ex's L and do a reciprocal exchange. Basically... "Sure, we're happy to provide these discovery documents, at the same time that you hand over all the ones we requested."

Your ex may have a mindset that "the rules are for JNChell, not me, and I'm entitled to all this, but JNChell isn't." That's not how discovery goes, and make sure to leverage the fairness of discovery.

I have 30 days. I don’t know how to answer a lot of the questions. There are no viable answers to a lot of them. It’s a very intimidating thing to receive.

I wonder if the inherent un-answer-ability of the questions has to do with what your ex told her L to ask. She has a disordered mind.

Yes, yes, yes, talk to your L, or at minimum his/her paralegal or assistant, and get help step by step on these. If I recall correctly, "I do not know" or something like that is an acceptable answer in discovery, as long as it's true. The mere fact that your ex is demanding answers doesn't mean she'll get the answers she WANTS.

...

1. Call YOUR lawyer
2. Make a list of the stuff you have to answer, with check boxes
3. Check off the ones you are sure about, make sure to send those by your L or the assistant for confirmation that your answer is OK
4. In parallel, thoughtfully and methodically start pulling together the documents (probably bank statements, pay stubs, stuff like that?)
5. Schedule a time in the next 2 weeks to go to the copy shop and make photocopies. I'm assuming it's still hard copy for discovery?

...

This will be OK. I suspect your ex has no idea that the same request will be made of her.

[JNChell]

My bad here. My attorney is a woman. Her attorney is a man. I guess that I got confused by the advice that I was given, but I didn’t provide that info for the post. Admittedly, I was rattled by receiving the petition. It’s aggressive and I just want to come to a reasonable agreement. Anyway, I apologize for not understanding the advice that was being offered. Skip, thanks for clearing that up.

[Skip]

It’s aggressive and I just want to come to a reasonable agreement. Anyway, I apologize for not understanding the advice that was being offered. Skip, thanks for clearing that up.

JNChell, that's a little like saying, I just want to win the football game.   You have to work it and be smart and you need to know the rules.

The fact that you are in a contested divorce with lawyers involved means that there are things the two of you don't agree with with respect to the split and the goal is to be more compelling to the mediator or the judge (if it goes that far) than the partner.

The mediator will try to steer you toward what is the accepted practices in your jurisdiction with regard to custody, visitation, child support, and property division.  Anything that either of you want above and beyond that, will require making a case for it.

What is your ex wanting with respect to custody, visitation, child support, and property division?

[ForeverDad]

You probably are not required to provide discovery that she does not reciprocal provide you.

Channeling my inner ForeverDad: DON'T let your L give her L all your hard work unless it's 110% guaranteed that she will give you the same. DON'T be "nice" or "early" on this one. Tell your L that you want him/her to meet with ex's L and do a reciprocal exchange. Basically... "Sure, we're happy to provide these discovery documents, at the same time that you hand over all the ones we requested."

If I recall correctly, "I do not know" or something like that is an acceptable answer in discovery, as long as it's true. The mere fact that your ex is demanding answers doesn't mean she'll get the answers she WANTS.

...

1. Call YOUR lawyer
2. Make a list of the stuff you have to answer, with check boxes
3. Check off the ones you are sure about, make sure to send those by your L or the assistant for confirmation that your answer is OK
4. In parallel, thoughtfully and methodically start pulling together the documents (probably bank statements, pay stubs, stuff like that?)
5. Schedule a time in the next 2 weeks to go to the copy shop and make photocopies. I'm assuming it's still hard copy for discovery?

This will be OK. I suspect your ex has no idea that the same request will be made of her.

Thank you, kells, yes I would have stated that.  I learned my lesson the hard way.  I sent over 600 pages in response to my ex's generic interrogatories.  Meanwhile we got no response - none at all! - to my lawyer's focused questions.  That's why it is good to view this as another opportunity to stop the one-sided abuser/victim scenario.  You are BOTH parents.  You BOTH need to complete some background information.

And yes, saying "I don't know" is appropriate if you don't know.

My greatest concern is that you will blab too much when you get to the question, "Detail every time you have been an abuser and ex the victim."  Isn't there a law where you are not required to incriminate yourself?  Sure, we all said or did things we're not proud of, but that Fifth Amendment Right to Not Incriminate Yourself is for your protection.  How that applies to you, your lawyer should guide you.  My lawyer told me his most important task was to STOP me from saying too much.  If 'Yes' or 'No' or 'I don't know' is sufficient, then STOP.

Remember, this is more about the child (parenting) than the parents.  But everything else will get drawn in as well.  This is where your lawyer needs to step in and guide you on what not to say, what to say and how to say it.  That's his job and why you're paying him so much.

[JNChell]

It’s not a divorce, Skip. Our Son was born out of wedlock. It’s custody.

[JNChell]

ForeverDad, I was awake for most of the night in bed wondering if I could plead the 5th on any interrogatory that I was uncomfortable with. At the end of the petition her lawyer stated that my words would be under oath. I’m not sworn in. I owe him nothing.

BTW, hope you had a nice trip.

[JNChell]

Sorry for the double post. So I can plead the 5th and request the same from her side? Another question. I’ve asked my attorney and her paralegal a few simple questions. How long should I wait for a response? I’ve heard nothing back after receiving two motions. I’ve asked questions.

[kells76]

What day/time did you ask your L the questions?

I'm not sure, if it were me, that I'd be asking your ex's paralegal any questions. See about just funneling those to your L. After all, your ex's legal team works for her. They might answer YOUR questions in a way that benefits HER.

In parallel, as you wait for answers (and let's say 1-2 business days is "reasonable" to wait, just for example), just do the best you can on the other stuff: making the checklist, answering the "solid" ones, flagging the "not sure" ones, and getting a box of docs together for the copy shop. If you have 30 days as a deadline for discovery, I wouldn't want to wait >5 business days for a L response.

[JNChell]

It’s all email. My attorney is an old high school friend. I’m starting to doubt her. Maybe I’m just being impatient, but I’ve expressed my concerns twice and I haven’t gotten a response.

[Skip]

I was awake for most of the night in bed wondering if I could plead the 5th on any interrogatory that I was uncomfortable with. At the end of the petition her lawyer stated that my words would be under oath. I’m not sworn in. I owe him nothing.

The 5th amendment applies to criminal court, not a civil lawsuit. If the other attorney asks a question that is overly broad, your attorney with object and narrow it.

For example:

Question: "How much alcohol have you consumed in your lifetime?"

Answer: Defendant objects to this question and the time frame addresses time periods that are not material to the case and the definition of alcohol and the metric of measure are not specific. Not withstanding our objection, since the birth of the child, the defendant has not been intoxicated when care taking the child.

[JNChell]

Does that apply to marriage or custody out of wedlock?

I understand that the Constitution is not recognized by the family courts. They’re separate. That doesn’t mean that I can’t recognize it as a citizen. Nothing has gone to court yet. Even if it was already in court, I have my rights. The family court wants to separate a person from their rights. They can’t do that. They can only make it hard. It’s a toxic system.
The 5th amendment always applies.

[SamwizeGamgee]

TBH although it's eventually required, especially before court hearings, I think the discovery process is used by lawyers to gin up billable hours. "Oh, let's look through ten years of JNChell's bank statement, that should be exciting?"  when actually, it's going to cost $3,000 to get and read those bank records. :/

Nothing is scarier than thinking we're in legal trouble. I hear you.  But, take it easy.  The court has rules.  Your lawyer had better be using those rules to help your case too.  It will balance out.

Although the outcome isn't certain, taking time and costing money is certain. You will get a chance to be heard and ask your own questions.

Don't go it alone.  We can boost you spirits, your lawyer has to fight for you.

Be sure to discuss IF you have to answer with your lawyer as well as what to answer.  A deposition is under oath, as is testimony in court.  Answering questions to an lawyer letter is still optional.  Never lie though.  That will bite you later.

[Skip]

I understand that the Constitution is not recognized by the family courts. They’re separate. That doesn’t mean that I can’t recognize it as a citizen. Nothing has gone to court yet. Even if it was already in court, I have my rights. The family court wants to separate a person from their rights. They can’t do that. They can only make it hard. It’s a toxic system. The 5th amendment always applies.

JNChell, respectfully, stop spouting off and get serious here.

Family court has its own rules, works primarily by formula, and is there to process cases - not mend families. It has a female bias when it come to children.

If you want to optimize your visitation, you need to be a pillar of stability, learn the rules, learn the formula, give them what they like, and be professional and respectful about it.

Anything short of that will not serve you well.

Are you up to the task?

[formflier]

Hey JNChell.

I want to double down on comments from others about courts being a process..rules..etc etc.

This applies to military justice and civil justice (I was Skipper in military and county manager for a while after retirement), so a decent amount of time in court and an enormous amount of time with lawyers that will be representing me or the county/government in whatever issue was going on.

Family court is no different.  I would hope that your L (the high school friend) is familiar/made many appearances in that particular court (not one close by..but that exact court).  

Having someone that is familiar with the clerks and judges is invaluable.  

You are going to get more wacky questions.  Let your L take the lead.  Answer (or a better word is respond to them ) them all based on your Ls advice.  

Have them done early and (as long as blessed by your L) don't hand anything over until they are ready to respond in kind.

This is potentially useful because there may be a point in time where "judge we are trying to move forward and were ready with our answers on xx date and also yy date, yet the opposing party has thus far refused to provide their discovery"

Don't expect anything massive...the judge will order it provided...and then admonish them again when they are late.  Eventually if there is a party before the court that constantly flaunts the procedure...they will likely have a consequence.

I once got a judge to issue and order that a particular party could no longer file any papers whatsoever with the court, unless those papers were approved by a judge prior to filing.  (long story but I documented a long history of flaunting process/abusing process.)

You don't want to be that guy  Be a solution...not a problem.  A solution for the child is your focus.

Switching gears.

Are you on the birth certificate of the child?

Best,

FF

[JNChell]

Skip, I don’t think that I have any other choice. You know, I don’t sleep much. I am constantly thinking about my Son. From what you’ve said, I have to play a game to see my Son? I trust what you say. If it brings my Son and I back together, then yes, I’m up to the task.

[JNChell]

Hey, ff. I am on the birth certificate. What I’m starting to worry about is not getting a response back from my attorney. I have to try to communicate through her paralegal. I have her personal number, but I’m not the only client. I get that. I’m rattled by this 14 page request. She told me that her focus is family court. I asked her if she is familiar with parental alienation and high conflict people. She said she is and seemed to understand.

I just want to see my Son. He’s 5. I miss him and I know that he misses me. I’m scared to death that he will be taught to hate me. I haven’t seen him since July 19. Our first hearing is December 2. His birthday. 5:38 pm. If I can get this into mediation, The solution will be the desired outcome.

I’m also curious for your opinion, does the 5th amendment have any weight in family court?

[formflier]

https://www.law.cornell.edu/wex/fifth_amendment#:~:text=The%20Fifth%20Amendment%20of%20the,war%20or%20public%20danger%3B%20nor

I can't imagine how it would appear in family court.

Here is the thing.  Testimony under oath is just that..it has to be truthful or if it is found to not be truthful, that can be a big deal

If it turns out that they are going to ask you about criminal behavior and you can't truthfully deny it, then you need to have a long talk with your lawyer ahead of time.

I kinda don't think you are asking about that, but wanted to make that clear.

I think most of what you are worried about is crazy bpd theories showing up.

Again..take lawyers advice.  I hope lawyers advice is something along the lines of  "no I've never done x.  X would be harmful to my relationship with my son.  I regularly do Y in order to improve my relationship with my son."

Keep refocusing on what you are doing to improve the r/s with your son.

Best,

FF

[JNChell]

That’s kind of what I’m thinking. In our arguments about S5, it always went back to her and how she was feeling. She can’t focus on our Son without making it about her.  I don’t have a criminal past. I don’t know where it is right now. It just amazes me how a natural process ends up in hands like this.

What are your thoughts on the 5th?