What Every Lawyer Should Know about Family Law: Dissolution Discovery
by Richard Gould-Saltman
(County Bar Update, August 2005, Vol. 25, No. 7)

What Every Lawyer Should Know about Family Law: Dissolution Discovery

By Richard Gould-Saltman, Gould-Saltman Law Offices, LLP, Los Angeles, CFLS. He is a member of the Family Law Section. The opinions expressed are his own.

County Bar Update thanks the Family Law Section for its assistance.

1. Feel the power of the disclosure statute.
More than a decade ago, the legislature changed—by way of the disclosure statutes—the way we do family law discovery. Those disclosure requirements have been tightened since; they are still underused.

A properly documented Final Declaration of Disclosure with all called-for attachments (such as deeds and statements) for a wage-earner household with a house, cars, bank accounts, deferred compensation, and other benefits should be 20 or 30 pages long. If the issues are more complex, it should be proportionately thicker.

Most are not, and most attorneys do not insist. Many lawyers routinely urge clients to waive final disclosure, though the legislature has made that increasingly difficult. I generally will not permit them to.

2. Feel the power, part 2: Make it stick.
Family Code 2100(c) imposes a continuing duty on parties to update and augment disclosures. Ask the opposing side to do so whenever you smell any change of financial significance.

If the opposing side refuses, or if the disclosure declaration is incomplete, move to compel augmentation as if you were moving to compel further responses to discovery. Unlike Code of Civil Procedure Sections 2030(l), 2031(m), and 2033(l), you are not required to make the dreaded California Rule of Court 335 "separate statement," though something like it may be useful if you are dealing with complex issues.

3. Use the "civil" form interrogatory set.
Some family law attorneys are puzzled that we send Judicial Council Form Interrogatories (FI120, not the Family Law set, FL145), and some ask why we sent the "fender bender" set. I rarely receive them, except when I send them.

J.C. Form Interrogatory #17.1 goes with all your CCP 2033 Request for Admissions. For each RFA answered with anything other than "admit," 17.1 requires the answering party to identify the facts on which the response is based and all documents evidencing—and all witnesses having knowledge of—the facts.

If there is only a handful of contested factual issues in a case (and in most cases, that is all there is), you can "clean up" your information as to the opposing side's case with17.1 very quickly. Since it is a form interrogatory, you can propound it several times, and it does not count against your limit of 35.

4. Supplement, supplement, supplement.
Long ago, attorneys sent as many interrogatories with subparts as they wanted. Occasionally, wise guys also would add an instruction to make each question "continuing," so supposedly you had to make your client keep answering it. Eventually, the law changed so they could not do that. Now, you can: CCP 2030(c)(8) and 2031(e) let you tell the responding side, "Go back, and update your prior discovery responses—all of 'em."

Again, I rarely get these except in response to my sending them. This is a powerful discovery tool, particularly to "clean up" right before trial.

5. Understand and use e-data.
Within the memory of some of you reading this, businesses had bookkeepers who kept the books (on paper). The bookkeepers would send the books to the accountants, who looked at them and prepared financial statements and tax returns (on paper). Banks sent statements (on paper) and even cancelled checks (on paper), and careful spenders kept a (paper) check register.

Now, Quicken and Money software cost less than $50 per copy. Banks want nothing less than to mail paper, and the IRS doesn't want you to mail it paper. Yet, I still encounter family law attorneys (and some judicial officers), some younger than I am, who "don't understand computers" and show no intention of trying to learn. They are in the buggy whip business.

If you can notice for production an e-file of financial records on a CD-ROM, which you or your accountant can view, print, and examine in whatever format suits you, and which you can securely e-mail, only a tree-killing masochist would ask that the same information be produced as a stack of paper records. Incidentally, savvy opposing counsel will note the wasted effort in addressing whether your clients should pay their fees or vice versa.

If you have your client answer interrogatories or begin disclosure declarations by shipping bundles of paper back and forth by mail, you are making your life, your staff's life, and your client's life harder than it needs to be.

In fairness, the Discovery Act and Evidence Code also are still not quite up to snuff on some of this stuff, so apparently the legislature is not keeping up with Slashdot ("News For Nerds") either. (CCP 1017 still refers to "Service by Telegraph.") What the Evidence Code means by a "writing" (Sec. 250), whether "original" (Sec. 255) or "duplicate" (Sec. 260), is not what the information technology manager for your client's company is likely to mean by it. Understanding how to preserve and authenticate electronic data is a prerequisite to being able to use it in court.

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