Preparation is the Key to Success!

I had planned to write about something completely different today, however, while I was in court today I was amazed by the lack of preparation by one attorney. While waiting my turn on the docket I was listening to some motions being argued before the Judge. Before I get into what the motions were about, let me start by stating that when an attorney wants the Judge make a decision in a case, the attorney usually files a motion requesting that ruling. In this case, the attorney had filed a Motion for Sanctions for failure to respond to discovery. Essentially the attorney was asking the Court to restrict the actions of the other side of the case because they failed to respond to discovery requests. Discovery requests are used in many divorce cases to find out about assets or fault in a marriage or habits of the other person. Discovery is crucial in many cases because your client may not know anything about bank accounts but if you request that information from the other side, they are supposed to provide it or give a valid reason not to provide it to you. In this case the other side did not respond at all to to the discovery requests. Usually, if a party does not respond to discovery requests there is a penalty assessed to that non-responding party, however, today was a different story and here is why.

1. The attorney never notified the opposing attorney after he was hired that there was pending discovery. If the other attorney never knew that his/her client had received discovery then he/she could not have responded to them. Granted his client should have told him about the discovery, but his client claims to have never received the discovery requests.

2. The attorney waited until the day of trial to have this motion heard. Typically in cases like these the attorney should file a Motion to Compel discovery and ask the Court to order the other side to respond. This should be done well in advance of trial so that there is adequate time for reviewing the discovery responses. If the other party still failed to respond after the Motion to Compel, then that would be the time to file for sanctions. This attorney, however, did not do that, but instead waited until the day of trial to request sanctions to prevent the other party from being able to present evidence in their case.

3.  The attorney did not keep any proof that he sent the discovery to the other side. This really is the key reason the Judge did not sanction the other party because the attorney did not have a letter or the certified mail receipt showing that he had actually sent the discovery. The only thing the attorney had was his copy of the discovery that he claimed to have sent. The attorney even admitted to the Judge that he could not find the certified return receipt. The Judge would not accept the attorney’s oath that he sent the discovery requests and thus did not allow the sanctions to be imposed.

Unfortunately for this attorney if he had taken a few moments to locate the certified return receipt he may have been successful in getting his sanctions. Just as with everything else in life, the more prepared you are the better your chances are.