Discovery & Depositions (Part 2)

Assembling a Witness List:

Your input is essential here. At trial, you will be telling a story to the court and you will need additional voices to make your story as vivid and credible as possible. Witnesses fall into one of two categories: lay and expert. Lay witnesses are sometimes called "fact" witnesses because they testify to facts they know or events they witnessed (in contrast, an expert witnesses give the court their opinions, based on scientific knowledge). To assemble a list of lay witnesses, I often ask clients for names of people who have been around the parties and the kids a lot, most importantly in the home. These witnesses need to be credible, articulate, neat, and sincere. School employees, such as teachers and counselors, are often credible witnesses. They can often discuss the level of participation and interest of each parent. They may also have observed the kids interacting with parents. Also depending on possible evidentiary constraints, they may be able to discuss statements made to them by the kids and the kids' academic performance.

Health care providers for both parents and kids can also be useful witnesses if there are allegations related to health. It should be noted, however, that federal and state laws severely restrict access to medical records. Typically "good cause" must be shown - abuse or neglect of children is usually sufficient.

Clients often ask, "How many witnesses should I have?" The answer depends in part on how many good witnesses are available and in part on the time constraints imposed by the court. Obviously if you do not have to ration time, you would put on all available helpful witnesses -- both expert and lay. In busier courts, particularly in urban areas, judges will prescribe a fixed amount of time to present your entire case. Obviously the time allotted will vary with the number and complexity of issues. For example, if only custody is in dispute, judges in St. Louis County, Missouri will often assign a dissolution case one day for trial, which means 3-4 hours for each party. I should add that apart from express time limitations, there is an implicit expectation on the part of all courts that you not fritter away time with cumulative or marginally relevant evidence.

Subject to these conditions, however, my personal view is to err on the side of too many witnesses rather than too few. I often have more witnesses present than I in fact end up using. When in doubt, I subpoena or otherwise assure the presence of a witness, then decide as the trial unfolds whether to call this witness to the stand. I shall warn you that this approach sometimes offends witnesses who come to the courthouse and sit around only to be told to go home at the end of the day. But my duty is to my client. Therefore I give little consideration to the possible inconvenience of a potential witness.

Once a client has identified the people who could give favorable testimony on his behalf, or the documents that support his arguments, lawyers can use the formal "tools" of discovery:

1. Interrogatories: These are written questions sent to the other attorney for his client to answer under oath. For the most part, any question is fair game, so long as it is relevant to the case. The written answers must be provided within a designated time period, usually 30 days.
2. Requests to Produce Documents and Things: this is simply a written request submitted to the other side listing various documents you would like to be copied and made available for your review. Again, you can ask for almost anything so long as it is relevant to the case. The other party must comply within a fixed period of time.
3. Subpoenas: These are documents sent to non-parties asking them to provide documents or testimony in a formal deposition. While your lawyer may subpoena some individuals for the trial date, subpoenas are most commonly used to gather information well in advance of the trial date. For example, employers, psychologists, and/or school officials may be called on to give documents or testimony prior to trial.
4. Deposition of a Party: This is a device by which your attorney can ask questions of your wife under oath with a court reporter present. Obviously her attorney may depose you. This is typically done in the office of one of the attorney's.

If you and your attorney are pursuing a particular piece of information, you must creatively decide on the best device to obtain it.

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.