Dispute Resolution: 2 – Information Gathering

All disputes pass through a series of phases. By the time a person is in a room talking to an attorney, the disagreement has probably exceeded the conflict-resolution skills of the people who are directly involved. Here is a roadmap for dispute resolution for these higher conflicts.

Information Gathering

Once the client and the attorney have determined that the client has a justiciable claim that is worth pursuing, the client and the attorney need to gather information. The information-gathering steps range from an informal collection of documents to formal discovery.

Informal

To get started on a case, an attorney needs some basic information based on the nature of the underlying claims. In a divorce case, this can involve:

  1. Asking the client to complete an inventory & appraisement and a financial information statement;
  2. Asking the client to obtain a credit report;
  3. Searching public records for real property, motor vehicles, corporate entities, and intellectual property;
  4. Searching U.S. Department of Labor records for retirement plan information and then contacting plan administrators for QDRO procedures;
  5. Submitting IRS Form 4506-T to obtain prior years' tax transcripts;
  6. Collecting Social Security statements;
  7. Gathering objective information about the value of assets and character of assets and an explanation for debts;
  8. Other tasks that are specific to the case.

In a child support enforcement case, it can involve:

  1. Asking the client to bring in bank statements and copies of canceled checks;
  2. Obtaining business records affidavits for financial records;
  3. Pulling payment records from the IV-D agency; and
  4. Gathering evidence in support of affirmative defenses.

In a custody modification case, it can involve:

  1. Sending releases to mental health care professionals to obtain counseling notes and records;
  2. Sending releases to physicians to obtain medical treatment records;
  3. Making open records requests to law enforcement agencies;
  4. Sending discovery subpoenas to schools (check your local rules on that before pulling the trigger)1This is more of a formal step than an informal step, but it needs to be done early in the case to validate claims about grades, academic progress, and attendance.;
  5. Collecting extemporaneous records, text messages, social media posts, email messages, and other information from the client; and
  6. Other tasks that are specific to the case.

The points are that each type of case has different information requirements and each case will have different information requirements than other cases: No two cases are exactly alike, but many cases start similarly enough to warrant a predictable and rehearsed initial approach.

Once the initial, informal information-gathering process is complete, the attorney will be in a position to determine what further, more formal steps need to be taken.

Formal

Formal information-gathering is known as discovery. The Texas Rules of Civil Procedure govern the discovery process, which can include:

  1. Interrogatories: A limited number of written questions that the person to whom they are directed (usually the opposing party) must answer in writing, under oath.
  2. Requests for Production & Inspection: An unlimited number of written requests for tangible things--usually documents--that the opposing party must provide unless (a) the document does not exist; (b) is covered by some privilege; or (c) is protected by another sustainable objection.2Too many attorneys lodge nonsensical objections to these requests and have to be taken to the woodshed early in the case. Don't shy away from the woodshed task. If pursued vigorously, forcefully, and intelligently, it can--oddly enough--settle things down a little.
  3. Request for Disclosures: A set number of pre-formed questions designed to elicit some basic information about the other party's claims, defenses, allegations of settlement efforts, and the expert opinions upon which the other party may rely.
  4. Requests for Admissions: An unlimited number of "yes or no" questions that, if crafted carefully, can lead to a precise understanding of the other party's claims and defenses. They can also be used to authenticate documents, which, though sometimes a tedious use, can reduce the number of (non-sustainable) "equally available" objections to Requests for Production & Inspection.3*In Re: Sting Soccer Group, LP, and Brent Lee Coralli*, 05-17-00317 (Tex.App--Dallas Nov 30, 2017).
  5. Discovery Subpoenas: A formal request to a third party, such as a doctor, a school, or an apartment complex, for attested copies of written records.
  6. Depositions: Formal interviews of witnesses that are similar to examinations in court except that there is no judge to rule on objections so, for the most part, objections not allowed.4I raise objections anyway to make them part of the record so that I can remember where to object at trial regarding the use of the deposition transcript.

Experience Required

To prevail in a case, your story has to be told better than anyone else's. Your story will be persuasive if it is backed up by evidence. Even if the judge finds your side of the case to be the more sympathetic side, if the judge is not presented with sufficient evidence in support of your side of the case, you cannot prevail.

Good attorneys with broad experience know how to build cases and support their client's side of the story in a way that is compelling and believable.

We're Here to Help

With careful attention to the smallest details, we'll help you build a convincing case.

Call us today: 972-985-4448.

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