The Five W’s of Discovery

Oct 26, 2021

Who, what, when, where and why. Those are the 5 Ws and in today’s podcast we utilize them to talk about Discovery! (And no, not the TV channel).


Podcast Transcript

Tracy Hightower-Henne: So today we’re going to talk about the five W’s of Discovery.

Susan Reff: Who, what, when, where, why? Why.

Tracy Hightower-Henne: We’re going to skip the how?

Susan Reff: Why starts with the W. Weird? See what I did there?

Tracy Hightower-Henne: Oh yeah, I was like, Wait, no, it doesn’t. Oh yes, it does lie. That’s like the I before e except after C, but not in weird. Isn’t that weird?

Susan Reff: I don’t know how to spell the word weird.

Tracy Hightower-Henne: Well, it’s e before I and it’s weird

Susan Reff: And R.D.

Tracy Hightower-Henne: I think we’re pretty good at spelling.

Susan Reff: No, not. Oh, I am terrible at spelling. I missed all of the grammar teachers that, like, focused really strongly on grammar. What do you mean you missed? I got I always got the teacher who was the creative writing hippy teacher. I think my mom worked that for me. She was a teacher at my school.

Tracy Hightower-Henne: What was your excuse for math?

Susan Reff: I did good in math. Oh, I didn’t really. Yeah, I did good in math.

Tracy Hightower-Henne: But just after what? Like fourth grade, it

Susan Reff: Got too hard? No. I’m terrible at arithmetic, I mean, when you read the letters right, I’m good at the logic stuff, but yeah, I never had the teacher who taught us what a preposition was or sentence structure or spelling.

Tracy Hightower-Henne: So this is really interesting because as I’m on my Spanish learning journey, it’s very important that you understand in English some of the things that they’re teaching you in Spanish and it’s, you know, takes you back to the grammar days.

Susan Reff: Like today, we’re going to learn Spanish prepositions, you’re like, I don’t know what that

Tracy Hightower-Henne: Even is in English. Yeah, yeah. Or what’s what’s it called when you have the ing words? Oh, I don’t know ing words, the words convert. I don’t know. I just had a like taking back to the days of example. I just went to an occupational therapist for my hands with my scleroderma. The goal is to avoid hardening of my fingers, and she pulled out some putty and she said, this is like silly putty, but for adults. And so the whole time she’s showing me these exercises and I was like, Do I get to take this home? And she was like, Yes, fun. So I now have some adult silly putty in my purse. That’s cool that I’m going to keep at the office, so you might see me. And it’s a good, like, fidgety thing, too.

Susan Reff: Yes, it’s a big thing with kids right now. They call it thinking putty, and it’s in. That’s the brand, I think, and it’s in all these different tubs and there’s like glow in the dark glitter magnetic, the kind you can like, form into a shape and it stays.

Tracy Hightower-Henne: Is it really just silly putty?

Susan Reff: No, it’s more goopy. Oh, a little more goopy.

Tracy Hightower-Henne: Oh, this is not goopy.

Susan Reff: By the time you put it in the tin, it like flattens out.

Tracy Hightower-Henne: Ok. But she did say not to leave it in my car. In the heat. It would be goop and then it would be thrown away. And she said that she said not to fly with it because in the x ray machines, it looks like a bomb.

Susan Reff: Silly putty looks like a bomb. This putty. Oh, is he a doll?

Tracy Hightower-Henne: Yeah, it’s in like a little Tupperware thing. Oh, we’re speaking of flying. I am flying tomorrow on the 20th anniversary of nine 11, almost right at the time when the first plane hit.

Susan Reff: I have flown on 911, too. Yeah, when I came back from my honeymoon.

Tracy Hightower-Henne: And were you scared? No. Yeah, I’m not scared. I feel like if anything were to ever happen on a plane again, just the people on the plane would not let it happen, which is what happened on the one plane that went down in the field. Right? Right.

Susan Reff: I yeah, people are more aware, maybe. And I think too with COVID, just everything. Everyone’s more aware of what other people are doing. I don’t know.

Tracy Hightower-Henne: Yeah. And they’re locking the cockpit and all of that. So I’m not afraid of flying, but I do think it will be really interesting. Like on the 20th anniversary of being in the airport, I think there will probably be moments of silence or, you know, things like that.

Susan Reff: Yeah, we I flew like, right there was that flight that came into Atlanta, that this was a long time ago. This was in the nineties that had, I don’t know.

Tracy Hightower-Henne: Yes, I was,

Susan Reff: But I was that was like I was flying home internationally and it was we were flying into the same gate as that flight had like a bomb on it or something. Oh. Yeah. Or there was a terrorist or I can’t remember

Tracy Hightower-Henne: It, so it was before September 11th. Yes. Yes. Yeah. Oh, interesting.

Susan Reff: So everyone clapped when we landed safely.

Tracy Hightower-Henne: Yeah, yeah. And I think that was the thing is they were always afraid of bombs and they never thought there would be a person doing hijacking.

Susan Reff: Right? You’re doing anything. I know my computer is making sounds, it’s telling me what I need to be doing. It’s telling me, you need to be recording a podcast right now. Oh, we started early.

Tracy Hightower-Henne: Yes, we did. Yes, your notification. So your notification said in one minute, in one minute, you need to be starting. Yeah, well, look, computer, we started early today.

Susan Reff: Start early, end early.

Tracy Hightower-Henne: Yes, hopefully. All right, so discovery, we decided to talk about this topic because we’ve had a lot of talks in our office about discovery and divorce cases and like the importance of it and what happens when Client doesn’t want to do it for a host of different reasons. So we thought,

Susan Reff: Let’s talk about it.

Tracy Hightower-Henne: Let’s do a podcast.

Susan Reff: Yay, podcasts for education.

Tracy Hightower-Henne: So when we talk about discovery in the five W’s, let’s just start with who.

Susan Reff: Who does discovery who? I mean, clearly, lawyers, right?

Tracy Hightower-Henne: Yeah.

Susan Reff: But like on what types of cases, unlike which clients cases?

Tracy Hightower-Henne: Yeah. So I think when we talk about the WHO of discovery, it’s all the people involved that, you know, come range from the client, the lawyer and potentially the other people being discovered, right? So like, we might have experts that have to provide us documents. Sometimes therapists are involved, sometimes CPAs are involved. And so we’re looking at who has the information and how are we going to get it? And so typically it’s the client and we often will think about, does the our client have the knowledge that is necessary to get the information? And if they don’t, then we need to ask the opposing party for the information. So for example. There may be individual bank accounts and maybe the bank accounts that aren’t in our client’s name, we need to ask for statements and discovery, but if they’re in our client’s name, we don’t need to ask for them in discovery. We would just tell our clients to get them to us, right? Right. And they always get them to us, right?

Susan Reff: That’s when, like the record player, does that screeching coming to a halt? Want one? Yeah, that one too.

Tracy Hightower-Henne: That too or there art. Also, it’s interesting how, you know, oftentimes will ask clients for information, and they have no idea how we want them because we don’t tell them. We just say, Get us these statements and documents and people are very different on how they give us the information, whether it’s digitally. Sometimes they’ll put them in a binder thinking they’re being super helpful in organization.

Susan Reff: The binders,

Tracy Hightower-Henne: Yes, the

Susan Reff: The

Tracy Hightower-Henne: We don’t need them in a binder.

Susan Reff: We love you, binder people. We really do. But we’re just going to take your binder apart and probably reorganize it in the way we want it. So maybe you, that binder person, should stick to just making binders for themselves.

Tracy Hightower-Henne: And honestly, too, we don’t even really want anything stapled because we’re ultimately going to scan it in. So we have to take the Sables apart. We usually often don’t want things ruined by a three hole punch, too, like we just need the documents.

Susan Reff: The worst is when you get a document with a three hole punch right through what you need. Like the date,

Tracy Hightower-Henne: The date on the statement, the

Susan Reff: Date, yeah, is on the left. That’s the worst. But you know, the worst I think I’ve seen was not that long ago. Someone brought in a box of all of their documents for us to review. And like, first of all, nothing was organized. It was just chucked in the box, right? It wasn’t like in folders or neatly stacked or anything. And then it smelled like what? I mostly smoke. But it was also kind of musty smelling, and certain documents in the box also appeared maybe to have mold on them or dirt.

Tracy Hightower-Henne: So this box wasn’t prepared for you. It was the box that was in the basement and they were like, Well, I hope everything that she needs is in here.

Susan Reff: Every time I get a statement or a receipt, I’m just going to put it in this box and someday I might need it.

Tracy Hightower-Henne: Yeah. And the other the other example I’ve gotten is, you know, going through a divorce can be very traumatic. And then also putting on top of that that you’re asking your client to like, get statements. They will bring in things and they feel good that they’ve brought it in. And that’s the gist of that’s how far they can get. I’ve had clients come in with documents crumpled up in a plastic grocery sack. Yeah, and they’ve like tied a knot at the top. And so now it’s like all curled up, you know, and they just like they literally in person. Plop it on the table in front of you and they’re like, Here it is. And you, you know, we part of our job is we can organize those documents, but we have to charge for that. Yeah. And I think sometimes people are just really not mentally able to do that organization themselves. So we have to do it.

Susan Reff: So I think the ideal delivery method is electronic. I think downloaded statements or scan, I mean downloaded, it is the best. But if they’re scanned actual paper documents, that’s OK to write.

Tracy Hightower-Henne: Or if we could literally just get the passwords of our clients bank account and we’ll just do it ourselves.

Susan Reff: So I heard that there’s an attorney who that’s what he requires. He says, You will come in and you will give my paralegal your passwords and you will sit down and she will log in to all of your accounts and she will access everything with you sitting right there. So it’s not like sneaky. And then he says, at the end, you have to change your password now.

Tracy Hightower-Henne: Great. Yeah, so he doesn’t also transfer money for payment of his attorneys fees while he’s sitting there. And by the way, you have an outstanding bill.

Susan Reff: Yeah. And while we’re here, let’s just put it my extra retainer on this credit card

Tracy Hightower-Henne: On an automatic monthly payment.

Susan Reff: Yeah, I think I think I think about divorce in the current time because everyone should have access to all of their statements online, right? Like you can get your utility bill online, you can get your credit card, your bank statement, your mortgage statement, your life insurance, whatever. But there are still people, especially in a relationship, in a marriage where only one person really accesses those accounts and the other person wouldn’t even know how to log in if they were asked to.

Tracy Hightower-Henne: That’s what happens in my marriage.

Susan Reff: I was exactly thinking of my own marriage in that situation.

Tracy Hightower-Henne: And I mean, you described it as like, it doesn’t happen very often.

Susan Reff: I think it happens in every marriage. Probably one person does everything. Yeah. And my husband is doesn’t love passwords, and this is not a strong suit of his to remember his passwords. And so he’s constantly every time he has to log into something, he has to reset it, and then he has to go to his email and then he’s like, Oh, my email is down or I can’t. What’s my email password? Oh my god, why is this so hard?

Tracy Hightower-Henne: How do you save your passwords in your head?

Susan Reff: I tend to use a similar password and then I like. You know, continuously add special characters to the end

Tracy Hightower-Henne: Because you don’t have enough sometimes.

Susan Reff: Well, and then there’s those stupid places that are like, you can’t use a password you’ve used before.

Tracy Hightower-Henne: Yes, like

Susan Reff: Really, this is my trash account. Like, who’s going to hack my trash account for like Abe’s? Yes. And then I have to have like the double authentication to access and pay the trash person.

Tracy Hightower-Henne: I’ve never created an account for my trash.

Susan Reff: Go for it.

Tracy Hightower-Henne: All right. So back on topic, let’s so back to the WHO on discovery, though oftentimes we are having to request documents from people who are not the clients in the case. So I think that kind of gets into our what and what is discovery. Yeah, maybe we should have started with that. What is discovery? It’s not the channel.

Susan Reff: What what in discovery? It’s such a weird word. I mean, discovery is just formal requests for things, mostly documents, but sometimes answers to

Tracy Hightower-Henne: Questions, right? It’s a it’s a host of things that like a toolkit that we have that we can say, Oh, do we want to use the wrench today or do we want to use the hammer?

Susan Reff: And what hammer y discovery?

Tracy Hightower-Henne: What’s the wrench in discovery?

Susan Reff: I don’t know. These are I mean, because like Hammer has like a. Like, it’s like, I’m in, I’m in it. Yes.

Tracy Hightower-Henne: Oh, the rent isn’t violent. The rent you stick a finger in the rent, it could be pretty violent. Yeah, I suppose. Or you can pull out the hose from your discovery toolkit and just hose everyone

Susan Reff: And spray them with requests. Yes.

Tracy Hightower-Henne: So, so typically, when we think about discovery in a divorce case, the standard is what’s called interrogatories, which is a fancy word for questions. Is it Latin?

Susan Reff: Well, I think it probably comes from interrogation.

Tracy Hightower-Henne: Oh yes, good. Yes, duh. And then request for production of documents. So sometimes you’ll hear lawyers say, Ah, pedes, so that’s pretty standard. Those two things will often go out kind of on a default basis in a divorce case, unless you’re having conversations with your client about some of the reasons they don’t want to do discovery, which we’ll get to. But other things that can be in discovery are subpoenas and depositions and appraisals. Maybe on a house or business valuation, which is really just an appraisal of a business. And so when we look at those things, those are things that someone other than the client has information on, like an expert.

Susan Reff: Yeah. And a lot of times it’s easier just to go straight to that person to get it right. Then, you know, going through the opposing party.

Tracy Hightower-Henne: Yeah. And so if we’re sending out interrogatories and request for production of documents on most cases and we don’t always do subpoenas and depositions and business evaluations and appraisals, when are the times that we decide to do those things? I love subpoenas, by the way.

Susan Reff: So are we talking about subpoenas or not? Yeah. Ok.

Tracy Hightower-Henne: Like, when do you decide to talk or send out subpoenas?

Susan Reff: So like in a case where I want information and I. I don’t think the other person even has it so, you know, it’s not their bank account, maybe, but maybe like their employment records. I will go usually straight to the employer. I don’t usually pull those through the person. I do subpoenas for police reports and Child Protective Services reports. Those are also not in the possession of the person. So they potentially, if I did ask them for them, they could say, Well, I don’t have these well, you know, but are you able to get them? I think is the standard right? Easily able to get them the child protective services records. You know, there’s a protocol that we have to go through to make sure things are protected and they will, you know, the Department of Health and Human Services will redact some information before they’ll issue any documents, even pursuant to a subpoena, but we still get the majority of the information that we need. So I subpoena those pretty regularly, those three things I think employment records, police reports and. I’m CPS

Tracy Hightower-Henne: Records. We just had a subpoena go out for one of the other lawyers in our Office for the Body Cam video during a child custody exchange.

Susan Reff: Yeah, and that falls under like what police have in there, right in their records of a report.

Tracy Hightower-Henne: And when we look at those things talking about the why is like. We often may tell our clients the judge is not going to watch that video and but sometimes we don’t know that until we actually get the video and we watch it ourselves, and maybe we can tell the judge, skip to two minutes and 30 seconds and start there, right? But, you know, getting information from someone other than a party called a non nonparty, we usually send out that subpoena. I personally love to subpoena bank records. I think it kind of scares the other party a little bit because they now have lost control over what they get to provide. Sure. But then also speaking of organization, the bank sends it to us in the way that we actually do prefer it digitally and in its raw form. And then we also usually get the canceled checks as well.

Susan Reff: I actually received subpoena documents from a bank and they had redacted some pretty significant information. And I was like, What

Tracy Hightower-Henne: Did you ask them?

Susan Reff: No, because it ended up not mattering. I mean, I was still able to see like the beginning and ending balances, and that was really what I wanted. I can’t even remember what they redacted, but I was both the other attorney and I were like, Why did they do that? It was interesting.

Tracy Hightower-Henne: So yeah, and then oftentimes subpoenas come back quicker, though, than sending out the request for production of documents. I mean, it’s officially a 20 day period. Instead of 30 days, the other side gets to respond. So sometimes we’ll do that quicker and just get it directly from the source. So that’s basically the purpose of a subpoena. Right? And doing written discovery from the client and doing interrogatories, we get to ask a lot of open ended general questions that we they then may turn into a supplemental request for discovery.

Susan Reff: Yeah, interrogatories are interesting, I mean, you can you can really ask anything, I mean, obviously someone could object that it’s not relevant, but I think if it even touches on a small issue of the case, you could probably overcome a relevance objection on an interrogatory

Tracy Hightower-Henne: And the standard for Nebraska. Rules of civil discovery are that it has to it has. It’s likely to lead to discoverable information. So we kind of get to ask whatever we want, so long as it’s likely to lead to something else that’s discoverable, right? And oftentimes judges don’t really go for the relevance objection.

Susan Reff: Yeah, not not in discovery. One of the things so I had a client who was reviewing the interrogatories that I was going to send out and she. Asked if I would add a couple of questions that she wanted added, and I reviewed them and they all were only required a yes or no answer. And I know what she was trying to get from the other person. But so I said to her, I said, I get what? You’re where you’re going with these, but let’s reword them. So it’s open ended instead of. Yeah, I mean, yes or no, because she was kind of asking them in an accusatory manner to like. You know, you you you did this thing to hurt the kids, right, basically.

Tracy Hightower-Henne: Well, that could be turned into a request for admissions. Yeah. Which is another thing that we don’t use very often and those can be very strategically used pretty well. And they’re typically looking for a one word answer, admit or deny. Yeah, no other fluff. We don’t need any other information, but they have to be pretty well written so that they are admissible or deniable. Right? And the other really cool thing about those is they’re deemed admitted if they aren’t answered within 30 days.

Susan Reff: I I really very carefully review the client’s answers to their interrogatories to make sure they actually answered the question asked and that they didn’t over provide. Right now, I also tell the clients, like this isn’t poker like we’re not real. Like clients are like, Well, I don’t want to show my hand. And I said, Well, by the time we go to trial, everyone knows everyone’s hand except the judge. So we’re just, you know, showing what we have to the judge and they’re showing what they have.

Tracy Hightower-Henne: It’s like it’s like at the end of Texas Hold’em, where you end up showing the hand and then the dealer decides who wins, right? The dealer, the judge is the dealer. Show your hands and yeah, who? Who won the pot.

Susan Reff: And also, you know, the caveat to discovery is, if you know you are asked, please list how many cars you have and all the make and models and all the information. And you say, I have a red Honda. And then at trial, you’re like, Well, I have a red Honda and a blue Toyota and the judge. And then the other side is going to throw your answer in your face and say, you lied. Or are you lying now or were you lying that, you know? And it’s like, so stupid. Yeah. So I tell people, don’t you want to give as much information as you would give at trial? Because otherwise they’re going to paint you as deceitful or a liar?

Tracy Hightower-Henne: And your responses to interrogatories and request for production of documents are signed under oath.

Susan Reff: Yeah.

Tracy Hightower-Henne: So when we talk about depositions, I typically like to get as much information as I can Britton discovery and then use those as an outline for deposition questions and then actually have the other party sit in front of me and I get to answer, or I get to ask them whatever I want in a deposition and they have to answer, and it’s also under oath.

Susan Reff: Yeah. Depositions are good also, because you can kind of see how someone behaves. And are they going to come across a certain way? Are they going to seem really aggressive or are they going to seem really calm? What’s their demeanor?

Tracy Hightower-Henne: I think doing depositions has probably fazed me a little bit when I speak in everyday conversations. You know, I’ll ask a question like, Hey Susan, do you want lunch today? And you say, Well, I brought lunch and I’m like, Wait, the question was, do you want lunch? Right?

Susan Reff: I think that’s lawyers in general to

Tracy Hightower-Henne: Answer the question. And you’re like, Well, no. My answer was I brought lunch, so that means no. And in a deposition, we get to kind of be a jerk and say that was a yes or no question. Can you please answer the question? And then the person is like, Oh my god.

Susan Reff: Have you ever testified at a trial?

Tracy Hightower-Henne: Yes. Ok. At the snowmobile

Susan Reff: Trial? Oh yeah. Oh God, God, that could be a podcast. So I mean, you know how hard it is when you want to explain your yes or no, or you’re like, Listen, I can’t answer yes or no, it’s kind of gray. Yes, that is so hard. This is interesting that both Tracy and I have been involved in trials when

Tracy Hightower-Henne: We years was the car accident one.

Susan Reff: Yes, I’m a car accident one. What I’ve also testified like as guardian ad litem in custody cases. But yeah, my car accident case.

Tracy Hightower-Henne: Yeah. And so in a deposition, you know, a good lawyer is going to prepare their client to when they are getting questioned to just answer the question. So if the question is, do you want lunch today, you just say yes or no, you don’t need to say, Well, I brought some lunch. I don’t. Maybe I’ll eat that. Maybe I won’t, which is technically or typically what happened is, do you think your spouse is a good parent? Well, I, you know, my spouse comes home from work every day, not until seven 30, and you’re like, just answer the question. And so when our client goes off on these tangents, all they’re doing is helping the other attorney with information. And so when I’m the one asking the question, I like to just let him ramble.

Susan Reff: Oh yeah, just do it.

Tracy Hightower-Henne: And then, you know, we may take a break and I’ll tell my client, Remember, I told you, you just answer the question and you need to kind of stop doing that. And then they’re like, What? But I need to explain my. And he’s often in a deposition, I explain. The judge is not here, you don’t need to explain yourself for anyone. You are just giving them ammo sometimes, right?

Susan Reff: One thing that I find clients ask me or assume and so I’ve started to tell them is at the discovery phase in the case, whether it’s the interrogatories or request for production documents depositions, that information only stays with the attorneys. It doesn’t. I think they think once it’s all done, it goes to the

Tracy Hightower-Henne: Judge and the judge reads all deposition transcripts like before they go to bed.

Susan Reff: Yeah. And I was like, if the judge had to review all of the discovery in every case that might, they would only be able to have like six cases at a time.

Tracy Hightower-Henne: No one would want to be a judge.

Susan Reff: Right. So I try to explain them, explain to them. Once Discovery is answered it, it stays with the lawyers unless at a deposition or at a trial or at a hearing. The person says something contrary to the information we’ve received in discovery, and then we can use it to point out they’re a liar,

Tracy Hightower-Henne: And then you get to use that Hollywood line. Were you lying then or are you lying now?

Susan Reff: No, you can’t handle the truth.

Tracy Hightower-Henne: Yes.

Susan Reff: Have you ever said that in court?

Tracy Hightower-Henne: No, not word for word.

Susan Reff: No. But have you have, you know? Oh, but I think I have said that something like, Well, what’s the truth then now? Are you lying now or were you lying then?

Tracy Hightower-Henne: I’m trying to think of a situation where a lawyer would say, you can’t handle the truth because it’s more like the client needs to say that.

Susan Reff: Oh, right, yeah. In that movie, it was the guy on the stand

Tracy Hightower-Henne: Who said that was it. Was it Tom Cruise?

Susan Reff: He was he. It was said to Jack Nicholson, said it to him, or to which one was the Kevin Bates lawyer. Tom Cruise was the lawyer.

Tracy Hightower-Henne: Ok, yeah.

Susan Reff: And Kevin Bacon was the lawyer.

Tracy Hightower-Henne: Yeah.

Susan Reff: And one of them was questioning Jack Nicholson, who was like the old guy who was like, We can torture these people all we want, and do we know the name of the movie? I can’t think of it. I was going to say 12 angry men, but I know it’s not really.

Tracy Hightower-Henne: Not that, but I also love that as a play that one’s really good, which I think originally was a play. But yeah, our listeners are probably screaming at their headphones right now, but we don’t know.

Susan Reff: We should do a podcast on all legal movies.

Tracy Hightower-Henne: Yeah, I think we’re going

Susan Reff: To do well. We’ve talked about what’s that one that you liked?

Tracy Hightower-Henne: The Lincoln lawyer? Oh, yeah, the Lincoln lawyer, which I still haven’t seen.

Susan Reff: It’s on my list to watch. So the Lincoln Lawyer, 12 Angry Men, the other one. You can’t handle the truth movie,

Tracy Hightower-Henne: Whatever

Susan Reff: That is. Yes, a few good men.

Tracy Hightower-Henne: Oh, we’re being showed Google.

Susan Reff: Our Yes, yay, Google.

Tracy Hightower-Henne: Oh gosh. Yeah. Ok, now a few angry men is not it. You just get a few angry men. Ok. All right.

Susan Reff: Few good men. So there would be a mash up. 12 angry men and a few good men. And you angry men? Yeah. And then it would

Tracy Hightower-Henne: Be a few angry men. There’s 12 is more than a few. A good, well, good men. Ok, so

Susan Reff: Coming soon to a theater near you.

Tracy Hightower-Henne: So discovery and we still have the when and the why and the where we don’t really know what to say about where, but. All right. So the when in discovery is my note is just long before trial, right? We’re not waiting until right before trial. We’re often sending out discovery questions and written discovery pretty close to after we file so that 30 days starts for the other side to start gathering the documents and answer them. Then if we need to supplement those requests and send out more requests, or if based on those answers, we’re sending out subpoenas or based on those answers are sending out business valuation requests and all of that. So really, the when is long before trial

Susan Reff: And the other win is knowing when not to do discovery.

Tracy Hightower-Henne: Yes. And I think that’s the big thing that’s happening right now.

Susan Reff: So our firm, I would say probably 90 percent of cases, family law cases, ninety five percent. We’re doing discovery. Yes, maybe it’s limited. Maybe it’s, you know, not a ton of subpoenas and no depositions. But there’s those cases where people are like, they like walk in the door on day one and they’re like, Here’s my hand, here’s my bank accounts. Here’s my retirement accounts. We just had our house appraised. Yes, you know, and my husband has access to all of this. In fact, I made a copy for him. We both have copies of everything. He’s currently at his lawyer with these same pieces of paper and we’re like sweet.

Tracy Hightower-Henne: And those people just saved twenty thousand.

Susan Reff: Yes. And their time,

Tracy Hightower-Henne: Yes and headache.

Susan Reff: The time it takes to pull I. I can’t even imagine if you have a full time job and you have maybe some kids that you’re running around and then you got to pull two to three years worth of statements from every account you’ve ever had your name on.

Tracy Hightower-Henne: It’s kind of like the process that you have to do for the underwriters when you’re either buying a house or refinancing a house, but on steroids. Yeah, because you usually were asking for thirty six months of statements, I think they typically ask for like 12 months. So sometimes you have to go to the bank to get that information that far back.

Susan Reff: Yeah. And pay stubs, W2s, tax returns. I mean, some people don’t keep those, some people aren’t paper people or they don’t scan them or they don’t keep an electronic copy or whatever it is. So then they’ve got to call the CPA and say, give me my five years of tax returns or three years or two years or whatever it is. And you know, and there can be costs associated with it, like they might have to pay fees to that person, right?

Tracy Hightower-Henne: And the other thing of when not to do discovery, we often do what we call one attorney model cases where we represent one of the clients. They have pretty much everything agreed upon by the time they’re coming or they or they are fully able to communicate together. And we’re really just helping them identify their debts and assets, draft the correct documents and make sure they get filed correctly. And sometimes we might have to give some suggestions of, well, this is how you would do this thing and then they’re able to figure it out. So that’s in the one attorney model. Those are the cases that we may not do discovery, because oftentimes those two folks know what their bounty is. They know their debts and assets. They’ve disclosed them to each other. Sometimes they’ve already had put together some sort of spreadsheet and they’re able to say, he’s getting this and I’m getting this, and we may make a suggestion of, for example, let’s separate retirement from non retirement and then do a calculation differently. But I think our job is to still make sure that that is within the bounds of the law in Nebraska, which is that there’s an equitable distribution of the marital estate, which in case law just means that every spouse should get somewhere between one third and two thirds of the marital assets, offset by debts. And that typically means about 50 50.

Susan Reff: So I just had a case close where we did not do discovery, and it was one of those ones where opposing counsel said, Here’s everything. Here’s the most recent statement on everything. It was a shorter term marriage. No children, one person was a higher earner. The other person was still kind of like building up their career. I think they were still going to school even part time, and we finalized everything came to a very fair agreement. And then, you know, a month later, we find out that there was there’s an account that was a joint account that didn’t get put into the mix. Of how we split everything, and my client found out about the account because the other person made a withdrawal and she got a notification, an email notification. So neither party disclosed this account to their lawyer. So I I said to my client, I said, Well, what’s the balance on this account? And if you have access, you know, why don’t you just go and withdraw 50 percent of the money in there or like, see what the balance was before he withdrew? I don’t even know how much he withdrew.

Susan Reff: And she said, I don’t I don’t know how to access this account. And I, you know, so there was a little bit of her not knowing on that end. So I just took that information to the other lawyer and I said. I didn’t know about this, and the other lawyer was like, Yes, you did, I told you about it. And so I sent her her email where she sent me all the documents. I said, It’s not in here, you know, and she’s like, Oh, OK. So she got me the most current statement. And it was it was fourteen hundred dollars was the balance, and his withdraw actually was a transfer to a different account of like the minimum fee, you know, you have to transfer to keep the other account open. It was so stupid. So I said to my client, I said, Well, what do you want to do? I mean, he gave you half of everything else. He’s probably going to give you half if you ask for it, you know? And she said, I’m just done. I’m totally done. I’m so mad at him for

Tracy Hightower-Henne: Forgetting about that account.

Susan Reff: Yeah. So she didn’t want to ask for her half. She just walked away.

Tracy Hightower-Henne: So, so kind of, you know, going into the y a little bit. So a recent case that I had that closed, I don’t know, a couple of years ago, it was a medium length marriage. Maybe they’d been married for about fifteen years and they were very, very friendly. But they did both have lawyers and we did discovery. I’m sorry, we didn’t do discovery right away. She thought that she was very comfortable in knowing what they had, and she wanted me to just do a settlement offer based on what she knew. In the beginning, I thought that was pretty fair. She did seem like she knew everything they had, and they came back. Instead of just agreeing to our settlement offer, they came back with kind of a crappy response. And it really started got me thinking like the way they responded was like, there’s something more. And I ended up talking her into doing discovery. She didn’t want to do it. She didn’t want to create animosity. She really thought it would make him mad. And I said, Well, I think it will make him mad because I think he’s hiding something. Yeah. And I think he’s hiding something big. So we end up doing discovery and he did get mad and they they had adult children together and they had stopped talking because we sent discovery over and we found a fairly

Susan Reff: Normal part of any

Tracy Hightower-Henne: Loss. And I had explained to her that, you know, because he has a lawyer, which was actually good in the scenario his lawyer is going to explain to him, this is typical. This is standard. And he was hiding a bank account that had over two hundred thousand dollars in it. Oh, and a retirement account that had over seven hundred thousand dollars in it. And some of it was premarital. And I said to this client, I said, you know, in so many words. See, I told you so like, we had to do this. And now she was walking away with her half of the marital portion of the retirement account, and she was very, very thankful. But it did take me, you know, some urging her to do this discovery. Yeah, and that’s why because we don’t know what we don’t know. She didn’t know what she didn’t know. She really, truly thought she knew. Yeah, everything that they had. And she

Susan Reff: Didn’t. Nine hundred thousand, yes. That’s a lot of money.

Tracy Hightower-Henne: Yeah. And this guy had, you know, just been saving it from his paycheck. She’d never seen paychecks.

Susan Reff: Yeah, you don’t really see your spouse’s pay stub very often, right?

Tracy Hightower-Henne: And if we if we don’t if if we aren’t doing child-support calculations, pay stubs aren’t really necessary to look at. But he had been, you know, putting half of his paycheck into some accounts and contributing a ton to retirement. So that was a really good example of why we err on the side of caution and do discovery so that we can get the information that we need. And and really, it’s so that the lawyers can help you identify all the debts and assets and make sure they’re separated equally or correctly. Right?

Susan Reff: So now we’re I mean, I think everything we’ve talked about kind of hits the why, right? Why do we do discovery?

Tracy Hightower-Henne: Yeah. And I think the other thing too, you know, in that situation, if you think about why are you getting divorce, there’s obviously some lack of trust in your relationship. Typically not. That’s not all of the reasons why people get divorced, but typically there’s some lack of trust. And if we are looking at potentially hidden accounts and secret activity, that’s happening through withdrawals and things. That is why we do discovery.

Susan Reff: To discover what’s out

Tracy Hightower-Henne: There, yeah, so this this is the Discovery Channel podcast episode.

Susan Reff: Now we’re going to get sued.

Tracy Hightower-Henne: Oh gosh. I take it back.

Susan Reff: We’re not the Discovery Channel disclaimer.

Tracy Hightower-Henne: We’re the Discovery Channel.

Susan Reff: Yeah, the discovery in your divorce case.

Tracy Hightower-Henne: Yeah. So I think all in all, discovery is very important for what we do, and it’s it’s provides that tool for us to help give our clients the best information and advice so that they can leave walking away, knowing they’re not going to look back five years from now and wish they had gotten more information. Yep.

Susan Reff: Because nothing, nothing makes lawyers happier than saying, I told you so.

Tracy Hightower-Henne: Right, or at least being able to think that in your mind and there are some clients that I would never say that to because I think they would fly off the handle. Yeah, I

Susan Reff: Don’t think we actually say it out

Tracy Hightower-Henne: Loud. I did to this one because she was very great and thankful.

Susan Reff: Well, yeah, in that situation where you’re like, See, look at what we found

Tracy Hightower-Henne: We were, it was a very happy moment. Yeah. And I think for her husband, it was like, Oh, they’re doing discovery. I didn’t want them to do that.

Susan Reff: So just to kind of ask a question to wind up I, I often have clients who are like, Well, Susan, that person’s hiding money, and I’m like, OK, well, we’ll find it in the discovery. And they’re like, Well, but if they don’t turn it over and we can’t figure it out. So like, I don’t know how to put that person at ease. I can only say, well, we can only discover what we can discover. Like, you know, if the person didn’t turn over that bank account info and that retirement account info. There’s a possibility you wouldn’t have known about it.

Tracy Hightower-Henne: I always take I tell those clients, I take that as a challenge. Yeah. While we don’t love discovery, I think it’s really fascinating looking at people’s bank accounts and kind of seeing like, what is this activity? I just have a recent case where someone is spending thirteen hundred dollars a shot at strip clubs. And I find out the

Susan Reff: Strippers on the credit card to always know, yeah, it’s either the debit card or the credit card or the ATM machines. And it’s like, Yes.

Tracy Hightower-Henne: So, so I stupid. Yeah. And so

Susan Reff: Either, you know,

Tracy Hightower-Henne: I often tell clients, I tell the clients who are having those concerns like, Well, you’re not going to find it unless someone is dealing in cash and cash only you’re going to find it right if they’re getting a paycheck. You look at the pay stubs, where’s the money going? You can trace it as a deposit in their accounts. And that’s why I like to send out subpoenas to banks because you can send a subpoena to all the banks in the local area, and it doesn’t cost anything because they’ll tell you we don’t have any accounts here, and you literally are just saying, send me any and all account statements for this person, Social Security number, because they’re all attached to someone’s Social Security number. So I usually start with the question Where do you think he or she banks? And then we send a subpoena to them.

Susan Reff: I remember a case. I think it was your case where

Tracy Hightower-Henne: Not my personal

Susan Reff: Case, right? A case of yours where there was a lot of concern about a person abusing prescription drugs. And I think you literally sent subpoenas to just random pharmacies.

Tracy Hightower-Henne: I think we did like Walgreens, CVS, Hy-Vee

Susan Reff: And don’t you have to send it to each individual location?

Tracy Hightower-Henne: I think we did, and we knew that this person was this a person that was wearing foil on her head, too? Yes. Yeah.

Susan Reff: So a long time ago, yeah,

Tracy Hightower-Henne: It was in our old office. I think that was like one of the

Susan Reff: First bigger divorces.

Tracy Hightower-Henne: No. One of the first like crazy side divorce cases where there was a lot of things happening. Yeah. And yeah, we sent the subpoena to those all those different places. And she this woman was abusing prescription medication such that she went to different locations. And they at that point, they weren’t tracking very well or at all that she had picked up OxyContin here, and

Susan Reff: The state patrol was supposed to do that. I mean, and that’s been in effect for a long time, but I don’t think they do a very good job of it because it comes up all the time in cases.

Tracy Hightower-Henne: As a result, we did get good information that she was picking up prescriptions at a lot of different pharmacies,

Susan Reff: Along with lots of

Tracy Hightower-Henne: Foil and foil. She brow. If you get the receipts, it was probably foil and prescription at Walgreens.

Susan Reff: So lesson learned. Listen to your lawyer’s advice about discovery. If if a lawyer is telling you you should do it, you should do it. And if the lawyer is telling you, you know, this will show you that all of the information, it’s true.

Tracy Hightower-Henne: And I think the one big pushback we get from clients is that their Google world tells you discovery is expensive, but sometimes it literally pays for itself when you are getting the information of nine hundred missing thousand dollars. Yeah. The couple of thousand dollars you may pay to get it is is worth it. But also, you know, discoveries. The cost of discovery just has to be done sometimes so that you can actually have a well-written decree that identifies all the debts and assets

Susan Reff: You got to pay to play.

Tracy Hightower-Henne: That’s right. Another poker term.

Susan Reff: Oh, that’s a poker term. Yeah. Not just sports in general.

Tracy Hightower-Henne: Well, it’s used in poker because you have to pay to stay in the hand, at least Texas Hold’em,

Susan Reff: Probably any poker, right?

Tracy Hightower-Henne: Sure. I don’t know. I only know Texas Hold’em. I think so. All in all, discovery is important. There are some exceptions where we don’t do it, but for the majority of the time we’re doing it. And you’re just going to be happy with it. Just live with it.

Susan Reff: Yep. And don’t drop off smoky documents.

Tracy Hightower-Henne: Yeah. And maybe try to do something other than the plastic grocery bag.

Susan Reff: All right. Thanks for listening, everyone. See you next time.

Announcer: Thank you for listening to the lady Lawyer League Podcast. Be sure to like and subscribe anywhere you get your podcasts, if you would like to learn more about our firm, Hightower-Reff Law, please visit us at H r Law We’ll see you next week.

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