Informal and Formal Discovery Procedures

During the pretrial or pre-settlement phase of your case, both sides engage in what is referred to as "discovery." Discovery is the compelled disclosure of documents or information by parties in a legal matter.

The forms of discovery to use in a case depends on factors unique to each case. Decisions regarding the forms of discovery should be made in close consultation between you and your divorce lawyer.

Informal vs. Formal Discovery

Discovery can be informal or formal. The forms of discovery to use in a case depend on factors unique to each case. Decisions regarding the forms of discovery should be made in close consultation between you and your divorce lawyer. In the case of informal discovery, each side voluntarily exchanges information with the other side. If it is possible, informal discovery is preferable, because it is generally less costly and yields more information. Formal discovery may consist of any or all of the following:

  • Depositions
  • Interrogatories
  • Subpoenas and Requests for production of documents
  • Court-ordered examination of persons or property
  • Motions for physical and mental examinations

Deciding on whether to engage in formal or informal discovery (if formal, what types of discovery?), is a tactical decision that has to be made in every case. If the separation is acrimonious, this procedure becomes less useful. The negative factor in the use of informal discovery is that the material that is produced is not produced under oath.

Discovery is an Important Part of Any Plan

While the cost of each procedure is certainly one factor to be weighed heavily, it is important that the discovery plan be tailored to the specific situation. It is important to realize that discovery may be necessary in order to assure you are fully aware of all assets prior to entering into a settlement proposal or going to trial. The failure to utilize discovery procedures in a plan tailored to your case may result in receiving less than the amount you are entitled to. In such a case, it will be difficult to have the judgement set aside if you could have obtained the relevant information during the pendency of the action. Therefore, decisions regarding discovery are the most important strategic decisions that can be made in dissolution proceeding.

 

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California Divorce Guide


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