Lead Paralegal, Lisa Parsons, discusses the discovery process, and why it’s such an important part of dissolution cases. Lisa and Steve answer the following questions in this episode:
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Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.
Steve Altishin 0:03
Hello everyone and welcome to our Facebook Live broadcast. I'm Steve Altishin, Director of Client Partnerships here at Landerholm Family Law, and today I'm here with Lisa Parsons, a paralegal here at Landerholm Family Law, to talk about the discovery process in divorce. How are you doing Lisa?
Lisa Parsons 1:29
I'm doing good Steve, how are you?
Steve Altishin 1:31
I'm doing well. So Lisa, there are a lot of folks out there who really aren't sure what a paralegal is. And I can guarantee it's not a legal person jumping out of a plane. It is a real thing. So can you talk to us a little bit before we get into discovery, about what a paralegal is, what your role is, and how you interact with the attorneys and the clients?
Lisa Parsons 1:59
So I think the best way to think of a paralegal is essentially like they're a min lawyer. Paralegals do just about everything behind the scenes. We aren't going to appear in court and argue your case before a judge, but we work with your attorney to draft documents, to gather documents, discovery, to do research. We're essentially a liaison between the attorney and the client. And so often, we'll work really closely with clients and maybe have two to three times more contact with them on a regular basis as opposed to the attorney. And this is certainly a financial benefit to clients, given that paralegal rates are substantially less than attorneys. But a paralegal is a fantastic resource for clients to use, and can essentially help with just about everything except giving legal advice, and we won't go to court and argue your case before a judge.
Steve Altishin 3:02
Well, that sounds like a really fantastic and and important skill set all of its own.
Lisa Parsons 3:10
Steve Altishin 3:12
So let's move on now into what discovery is. We talked about this before, it's something that everyone hears about, everyone's heard of in court cases. But what is it? What is discovery?
Lisa Parsons 3:27
So discovery is essentially an information and documentation gathering process involved in all types of cases. In divorces particularly, we do have required disclosures or certain documents that you need to provide to the other party. But we use it as a roadmap to determine the complexity of a case or what preparations need to be made in anticipation of settlement, mediation, or trial. It gives us a lot of information. Essentially, what we're looking at in a case. We will gather records about debts and assets and work closely with a client to identify everything that's involved in their marriage, as far as property and debts go.
Steve Altishin 4:22
So is discovery happening in every case? Is it mandatory to be in every case?
Lisa Parsons 4:31
There is a mandatory requirement in all divorce cases. There are exceptions to the rule, and in certain circumstances, we might not do it. But from my experience, discovery is necessary in about 95% to 98% of cases. And it's actually to a client's benefit to do that, so that all assets and liabilities are identified. And I've certainly had many situations where clients weren't aware of bank accounts, or stock accounts or even a safety deposit box of another party.
Steve Altishin 5:08
So if someone says to you, you know, I'm just not going to do discovery, I don't care if they ask. Is that a viable option?
Lisa Parsons 5:20
Many have tried. The truth is, when that happens, there are steps in the legal professional that we're able to take to essentially force them to disclose. If they refuse to comply with a formal request, you would submit something to the court asking a judge to compel or force them to provide that requested information or documentation. If they still refuse to provide it, for one that certainly helps your case to get your attorney fees covered by that party. But there are also other legal documentations that we can prepare and serve, such as on financial institutions, to go around that individual and still obtain records about their accounts, their retirement, their employment benefits.
Steve Altishin 6:16
Wow. I guess bottom line is, you don't get to hide your assets.
Lisa Parsons 6:21
No, unfortunately, when people try it, it does end up being a costly endeavor. It's unfortunate when people feel that they don't need to disclose or they shouldn't have to, because it's a hassle. And granted, it is a lot of work, but it will be more expensive in the end, and will reduce what the parties have to divide, because they're paying attorney fees. Whether it's our client paying us to go after their records, or them being ordered to reimburse the other party for their attorney fees, because they failed to do their job.
Steve Altishin 6:57
Yeah. And it seems like if your client wants to settle, they don't want to go to court, they want to get the thing settled for a variety of reasons, including it being less expensive not to go to court, you need to have that discovery, because no one's going to settle if they don't know what the other side has.
Lisa Parsons 7:18
Exactly, exactly. And in those cases, unfortunately, after a divorce, sometimes things are discovered. And when you found out that they had, you know, a $50,000 bank account they didn't disclose, that can be grounds to essentially overturn the original divorce judgment and have to start over because they failed to provide that information that was pertinent to their divorce case.
Steve Altishin 7:46
So you mentioned a little bit about the different ways that there are discovery. One is you can ask for documents, you can ask for them to give you documents, and that if they don't, you can subpoena those documents. Are there other ways you can get discovery out of people? Are there other people you can ask, or are you just relying on the good word of the other party?
Lisa Parsons 8:16
No, absolutely not. We are able to discover information and documentation in other ways, one of which would be deposition. We can take the other party's deposition and ask them questions while they're under oath and it's on the record. Those depositions are typically recorded by a qualified court reporter, and do come into evidence in hearings and trials, if it gets to that point in the case. We're also able to depose third parties. So if the other party doesn't disclose their employment benefits in their earnings, we can depose their employer and obtain that information in other ways. We also have an option of doing a request for admissions, which is essentially a signed sworn statement where you answer questions and provide information when you're essentially under oath.
Steve Altishin 9:19
Wow, it sounds to me like discovery not only is very important, but is a large chunk of a divorce case.
Lisa Parsons 9:30
Absolutely, Steve. I often tell my clients that it's going to be one of the more expensive portions of their case. But it is so valuable and important. And when you do the work on the front end and you gather and provide the documents that are requested of you, it saves a lot of time later on in the case.
Steve Altishin 9:52
It sounds like using you saves a lot of money because for a lot of that stuff, do you want to pay your attorney the attorney fees to go get documents, to gather them, to put them together in a form that works, when that's what your skill is?
Lisa Parsons 10:14
That's absolutely right. And you know, it's far more cost effective to have a paralega, review and organize them and pull out the pertinent details that the attorney's going to want or need to know. Or to flag things. If you see a $10,000 withdrawal from a joint bank account, as a paralegal, we might flag that to the attorney and say, 'Hey, this $10,000 was withdrawn, and I don't see that it was deposited into another account'. It basically reduces the time that the attorney needs to spend going through those records, because a paralegal's already gone through and organized and prepared them in a way that will be useful for that attorney.
Steve Altishin 11:04
You know, you hear from a lot of people, 'Well, my attorney just pushed me on to the paralegal', like that's a bad thing! Someone shouldn't say, 'Oh, I'm talking to the paralegal,' they should say, 'Wow, I'm talking to the paralegal!' It helps the case. So let's talk a little bit then about the case, the process of discovery. When do you get started on this thing? Obviously you've got to wait until a client signs up with the firm, but I mean, how soon does the process have to get started?
Lisa Parsons 11:42
Almost immediately. As soon as I have information that's necessary to draft their initiating documents. We like to tell clients, here are the types of things that we need, in a case such as yours, it's a good idea to start gathering them now. Particularly because there are rules in place that say you need to produce records within 30 days of being served or serving your petition. So if a client can get working on that, even before we file, they're initiating documents, it's going to save time down the line. And a client can work with a paralegal to determine what's missing, or what additional information is needed, after having provided some of those preliminary documents.
Steve Altishin 12:32
So I know there's probably a ton of different things that you need to get, and it probably varies from case to case. But can you give us a kind of a flavor of what sort of documents people can be aware of that they're going to try to have to find and get to us?
Lisa Parsons 12:53
Typically, tax returns are almost always necessary, and we request 1-3 years. That includes your W2 statements, typically earning statements for the current year, or a full year of earning statements. We also ask for bank statements, typically about a year's worth of bank statements, of credit report. Social Security statement that shows your lifetime earnings record. We'd ask for at least a year of credit card records, of real property mortgage statements, or a deed to your house, the title to your car. I often ask clients to pull Kelley Blue Book valuations on their vehicles, because that's a helpful tool for us in our process. So it can be quite substantial.
Steve Altishin 13:48
Let's pretend I'm your client and I say to you, 'Do I have to do this? Why do I have to do this? Why do I have to get that?' It sounds like even though there's a mandatory production of documents, there's a lot of other things that can happen in a divorce case that are going to need some of this stuff. Even if you're not going to go to a trial, maybe you're going to go to mediation, do you need it to get temporary orders or support? Is that all involved in this?
Lisa Parsons 14:23
Absolutely. One of the most frequent things that we do is review earnings statements, typically asking for the first earning statement for either the calendar or fiscal year. You might get paid on January 1, but the pay period beginning date is December 22. So that information is really important. In addition to that, we would ask for like a current earnings statement to calculate your income in several ways. Salaried employees are a little bit easier, but for people who earn an hourly wage, we would run their income several ways. We would do a year to date breakdown, we might look at last year's W2. And so all of those details are very important, especially when support is involved.
Steve Altishin 15:17
And you're doing a lot of this financial gathering and analysis as part of your job being a paralegal.
Lisa Parsons 15:25
Absolutely. So I would take that information, and essentially prepare a form that says, here's their income, here's the three ways that it's been calculated, what looks most accurate? And the attorney is going to review that, and then determine what is most appropriate to use for our purposes that will then be a determining factor for child support or for spousal support. And so I'm presenting that information to the attorney after I've worked with the client to gather and review those records.
Steve Altishin 16:00
And you're not just beating up on your client. This is also something that the other side is having to gather, and you're expecting it. And if they don't give it to you, you're going to go after them, and you're going to demand it. So this is not a one sided deal.
Lisa Parsons 16:19
Absolutely. We we can't control what other attorneys do and what their practices are. But what we want to do is make sure that our clients are in compliance. That they're doing the job that they need to do, and that we're providing records and information on time. We certainly aren't going to hand over all of your records without a conversation and reviewing them. There are certain times when records aren't necessary for production to the other side, but they are valuable for our purposes, such as Kelley Blue Book valuation of a vehicle. We would want to know that information when we're identifying assets and liabilities of the marriage and assigning values to those assets. But we may not disclose that to the other side until we're at a later phase, such as mediation or trial.
Steve Altishin 17:14
So you're not doing work for the other client, the other side. You're not doing work for them. You're doing work for you, for your client.
Lisa Parsons 17:25
Exactly, exactly, and to prepare my attorney, to the best of their ability, to represent that client and have all of the information that they need to do that.
Steve Altishin 17:37
It just makes complete sense. So what if someone doesn't have some of the stuff you want? Obviously, this is a two edged sword, because you're going to send a request for production, but they're going to send it to you. And you're going to go to your client say, 'These are the things we need to give them'. But what if they say, 'Well, I don't have it, I'm not even sure how to get it'? I know there's a term called possession and control. How does that all work?
Lisa Parsons 18:10
So essentially, the way I like to look at it, possession is something that you actually have at your disposal-- it's at your home, it's something that you can access through your computer, something you can easily get, because it's already in your possession. Control is more something like bank statements, and credit card statements--you might not readily have a year's worth of statements at your disposal in your house, at your home, on your computer, but you have the ability to go to your bank, or contact your bank, or login online even and request historical statements. So when we're saying if this is something in your control, it means you have the ability to go and obtain it. I think a distinguishing factor may be something like if you filed tax returns jointly, and you used TurboTax, but you don't have any of the login information because you weren't the person who created that account. That's not necessarily going to be in your control anymore, that would be in the other party's control. But if you use TurboTax, together, you have access to TurboTax and that login information, you would have the ability, or within your control, to go and download your tax returns and provide those to your attorney.
Steve Altishin 19:34
What about information that is, I think you've kind of hit on this, not necessarily required, or that you may need going on? Do you do try to get all the information as early as you can? Or do you wait at times if it makes sense to get information later, depending on what's happening? Is that a decision that's made as you gather information?
Lisa Parsons 20:03
Absolutely. Often getting the preliminary information, like I mentioned in the beginning, it creates a roadmap. It helps us determine what is needed and when it will be needed. Discovery is an ongoing process, that will be a portion of their case, from start to finish. If it's going to mediation or trial, we're going to need updated statements, updated pay records. Sometimes we tell clients, just send them as soon as you get them, you know? It's better to just already provide it to your attorney, that way when that need arises, for trial or mediation or hearings, we already have the information at our disposal. But we work closely with clients to make those decisions and determine what is the most cost effective way to provide the information that we will ultimately need for their case.
Steve Altishin 20:56
This is kind of a dumb question, but I'm guessing clients don't have to guess about what they need to provide you, right? You're pretty specific on the stuff you send them. Can kind of give us an example, maybe, of what you actually send out to them so that it's not like, 'Oh God, do I have to guess, what does financial information even mean?'
Lisa Parsons 21:19
Right. So the beginning of a case, I'd often send clients a checklist. And the checklist actually says, you know, provide your last three tax returns, provide these specific statements for this period, provide your life insurance declarations, something of that sort. So I would actually give a client a checklist. When we get a request for production of documents, similar information is provided. And oftentimes, we're giving clients instructions on how to even pull that information. If you're asked for credit reports, certainly there are several ways to pull credit reports. But we will actually provide step by step instructions, such as here's how to create an account at Creditkarma.com. Here's where you go and what you click to obtain the report that we're looking for. Or similar with the Social Security statement, we actually provide the website and information on how to go about getting that information. And paralegals work closely with clients to pull those records, oftentimes.
Steve Altishin 22:27
You sort of work hand in hand. They're not just out there in the technical force of darkness trying to get this stuff themselves.
Lisa Parsons 22:37
Exactly. The priority is to have that open line of communication so the client can come back to us after a week of looking at this checklist and say, 'Man, I'm overwhelmed, I got these things, but I'm having trouble here'. And a paralegal can give further direction, can give assistance, show them easier ways to obtain it, or make a determination whether it's even necessary to provide.
Steve Altishin 23:07
I'm also pretty sure that there are things that you have to produce, or your client has to fill out and sign, depending on whether there's child support, or there's maybe spousal support, or, you know, all these kinds of things that have to be filled out and have to be filled out correctly, or else you may not only not get a good result, but you can get in trouble with court.
Lisa Parsons 23:31
That's absolutely right. In cases where support is an issue, we need to complete a form that's called a uniform support declaration. Basically, it's a form that focuses on your income and expenses. And we need to identify what your monthly expenses are, as well as your gross income.
Steve Altishin 23:54
Following you on that, there are reasons, I'm assuming, that aren't just about the stuff you owe that you may need discovery on. Because you also work, as a paralegal, especially with the attorney and the client, on some other issues that aren't necessarily just financial. Is that correct? And I'm thinking in terms of, what about things like visitation, or those kinds of things? Is there discovery sometimes used in trying to determine, you know, which party is more involved with their kids, or school records, or any of that kind of stuff?
Lisa Parsons 24:43
Absolutely. It's certainly a bit case-by-case, but when children are involved, we often like to tell them early on, you should start keeping a journal and make these types of notations. And here are the things that we will ultimately need to know when we go before the court to argue that you should have custody of your children. And so oftentimes we are looking for records that have to do with their routine, their schedule, their attendance for school, or their grades. And so there's definitely information that is asked for or necessary for issues such as parenting time and custody.
Steve Altishin 25:27
So let's asy the other side makes a demand for something. They say, give me this, either a document or information, or whatever. Are you necessarily obligated, or is your client necessarily obligated to provide that information? Are there kinds of information that you can object to having to turn over?
Lisa Parsons 25:56
Absolutely. The rules don't require that you create something that doesn't already exist. An attorney might tell you, we want you to start creating this log. But we're still able to object or indicate that it's a work product, or that it falls under an attorney-client privilege. We work really closely with clients to determine when and if things shouldn't be produced, or whether to even provide information. I've seen requests where they're asking for name and contact information of a CPA. You can provide that, but the rules don't necessarily require us to provide that information or list it within a formal response.
Steve Altishin 26:42
Are there protected documents? Say I go to something like a doctor, or a pastor, or a medical provider. Are there things that you may end up gathering, or not, but ultimately don't need to be turned over to the other side?
Lisa Parsons 27:05
Definitely. I think, you know, on a case by case basis, we determine whether those sorts of records are needed. Whether maybe a medical condition affects the ability to work, or if an injury is preventing them from returning to work. We might obtain those records, but they are protected. And so it may be necessary to prepare and file a document that essentially prevents that information from being disclosed or used in certain ways. Where if we are required to provide it to the other side, they can have that information, but there are limitations on what can be done with it. That way, an individuals confidential records, or medical history, remains confidential.
Steve Altishin 27:55
And I'm assuming that, in terms of what you've turned over to the other side, if they're demanding it, it has to at least be relevant or lead to something that's relevant. I mean, they can't ask you to provide every time you logged into Twitter over the last 30 years.
Lisa Parsons 28:19
They can absolutely ask for that, but there are objections that can be raised that essentially say, 'This is outside the scope of discoverable issues for this case', or essentially telling them, you need to explain the basis, why is this important? Why do you need this to prove your case, before we'd necessarily have to provide them. We like to tell clients to gather and provide everything that's asked for and provide response details for each item requested. But that doesn't mean that we're going to provide all of those records or give those answers to the other side. It's often for internal purposes, so that we can prepare a formal response and protect our clients interests and rights.
Steve Altishin 29:09
I imagine you have many phone calls with your clients about these exact kind of situation.
Lisa Parsons 29:16
Absolutely. You know, doing discovery is not a wham bam, thank you, ma'am situation. It's something that is ongoing. There needs to be open lines of communication. There's a lot of back and forth, determining whether something exists, whether there's more to it, when something was opened. And so you really do work a lot with client and paralegal determining what there is and how to respond to these things.
Steve Altishin 29:46
You and your clients, at least for the period of time in that case, can become very close.
Lisa Parsons 29:53
That's absolutely true. I don't think there's any way not to. It's such a difficult time in your life to be going through dissolution of marriage, and it's heartbreaking in itself. And then to be given a list of 25 or 30, or, you know, even 10 things that your attorney's saying you need to provide, it's overwhelming. But paralegals are here to help, to guide, to assist, and really work with you on that, so that you don't feel overwhelmed and like you can't do what's being asked of you.
Steve Altishin 30:27
I'm assuming that it's not unusual to see people try to use this process as a weapon, and really use it as an emotional weapon. They want to embarrass, they want to annoy, they want to harass their soon to be ex. You have to see that a lot, from both sides I imagine. The other side, you can tell them whatever, but you have to have a conversation with your client if they want to do that.
Lisa Parsons 31:03
Absolutely, and discuss the pros and cons of it or the financial implication of doing some of those things. It's certainly an emotionally charged situation. But our goal is to guide you through this process. A divorce isn't a situation where you just hire an attorney, and they're going to do everything for you, and you get to check out. You need to actively be involved in the case and provide information, records, answer questions. As a paralegal, oftentimes, I will draft documents from the clients perspective. So I need to get inside the client's mind. What did they experience? What did they go through? And I need to be able to articulate that into a form or response that's necessary for the case.
Steve Altishin 31:54
And that kind of leads to my last topic on this. This isn't just about you, interacting with the client, getting the information, doing all of this work, analyzing, putting it together, putting it out in different ways. There's an end result. I mean, there's a reason for doing this. And I guess that comes out on the other end, where you're interacting with the attorney, or what have you. So how does that work, just in kind of short form, in terms of like, you take all this information, now you sit down with the attorney, what kind of a conversations can go on at that end?
Lisa Parsons 32:36
Typically, what I would do is prepare a spreadsheet that shows and has identified all of the assets and liabilities, and assigned values to those items. I would also prepare a calculation sheet for each party's income. There'll be one for our client, one for the opposing party, and then another one that has to do with support, whether it's spousal support or child support. And this information is given to the attorney and we sit down, review it, and determine where's the case going to go now? Is it possible to settle? Are these issues things that can be easily resolved? Or do we need to prepare for trial? And what would we need to prove our case, or our position, on certain things?
Steve Altishin 33:30
And you have taken a raft of information. How many pages are we talking about, just a ballpark, because it seems like we're talking about a lot of pages of information you're going through. And you're giving the attorney these focused, analyzed reports that have taken 1,000 pages, and you're turned it into the 20 essential pages of how to go forward. Am I over stating that? It sounds like that's kind of what happens.
Lisa Parsons 34:13
No, you're right on. I have cases where the discovery and electronic discovery binder might have over 2,000 pages. And I've condensed the pertinent details from those records to a two page summary that has all of the notes and information that we would need to then create an asset and liability spreadsheet, which is often two to three pages. And those income calculations and support calculations are two to three pages. So we're talking about taking over 2,000 pages of records and condensing them to under 10.
Steve Altishin 34:54
This has been really fascinating. It really has, and I think anyone listening can not just understand, but appreciate the value of what you do, not only to get the best result, but to save them a boat load of money. I can imagine that an attorney fee going out where they did all of that. And frankly, that's what you're trained to do. It just, it seems like paralegals really are a clients best friend. So, I just thought that was great information, all the way around. And thank you, Lisa, for joining us today, you provided a tremendous amount of insight. Thank you very much for doing that.
Lisa Parsons 35:48
Wonderful chatting about it. Yeah, it's obviously a really big subject. There's a lot that goes into it. But it's a really vital part of all divorce cases. And a paralegal is here as a resource, as a tool, as a companion through this process, to navigate and explain things in a way that makes sense, as opposed to just attorneys explaining to you, 'Here's what the law says, here's what it does, and this is what's going to happen.'
Steve Altishin 36:19
Yeah, I relate to this. I like to cook, and I relate to this, like, when I want to make a dinner, and I'm all excited, and I'm gonna make the greatest dinner tonight. And then I find I don't have the garlic, or I don't have the balsamic vinegar. I'm missing an ingredient. And I'm going, 'Well, why don't I have that in front of me, because I want to make it!' You provide the balsamic vinegar. And not only that, you provide how it's best used, so I can make a good meal. I mean, it's kind of a funny analogy, but it's really the distillation of: you're gonna do better, your clients gonna get a better result, when everything is available. So thank you so much for helping show that. Also, I do want to thank everyone who tuned in today on our Facebook Live broadcast. And if anyone has questions on today's topic, please feel free to post it here. You can also shoot me an email at [email protected] And until next time, everyone stay safe. Have a great day. And welcome to the sunshine, I think we've got spring coming.
You're listening to Modern Family Matters a legal podcast, focusing on providing real answers and direction for individuals and families as they navigate the growths, changes, and challenges of creating their new family dynamics. Modern Family Matters is sponsored by Landerholm Family Law, serving Oregon and the Pacific Northwest and devoted to providing clients with compassionate and fierce legal advocacy with a firm belief in the importance of upholding the family unit amidst complex transitions. If you are in need of legal counsel or have additional questions about a family law matter important to you, you can visit our Landerholm Family website www.landerholmfamilylaw.com, or call us at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering solutions on legal matters, important to the modern family.