Like any other civil action, family law matter outcomes are decided on the facts. Those facts are typically collected directly from the client, and through interrogatories and requests for production of documents.

Typically these methods alone are sufficient to collect the discovery you need to engage in settlement negotiations and prepare for trial.

However, there are other methods of collecting facts that may be appropriate and necessary in some matters. To best represent their clients, family law practitioners should be aware of all available discovery tools, and recognize when these tools should be considered when collecting facts.

Tool #1: Depositions

There is a reason that depositions are utilized in almost all civil litigation cases outside of the family law realm.

Depositions allow parties to see how witnesses will testify in advance of trial. Not only are facts collected by deponent testimony, but depositions provide parties with insight on the credibility of witnesses who may be called at trial. Additionally, deposition testimony is taken under oath and may be used at trial to impeach a witness if they testify differently than they did in the deposition.

The barrier to conducting depositions more frequently in family law matters is their cost. In addition to the attorneys’ time preparing for and attending a deposition, parties must also pay for a court reporter to attend the deposition and transcribe the deposition transcript. While such costs may make depositions impractical for many family law cases, they may be worthwhile in more complicated matters with many facts in dispute.

Because depositions allow all involved to see how witnesses will testify at trial, they can be a helpful tool in spurring settlement, which should be considered when weighing the cost of depositions with the cost of a contested trial.

Tool #2: Requests for Admission

Requests for admission may be the most underutilized tool in the family law practitioner’s discovery toolbox.

Requests for admission allow parties to pose fact statements for the other party to either admit or deny. This discovery tool can be an effective method to dispense of undisputed facts without the need to testify to those facts at a contested trial.

One of the primary benefits to requests for admission is that the facts are deemed admitted if the responding party does not respond within 30 days of receiving the requests. For this reason, parties should include all determinative facts in their requests for admission, even if they are believed to be disputed.

Unlike depositions, requests for admission are cost-effective to implement, and should be considered in more contested family law matters.

Tool #3: Requests for Inspection

Wisconsin’s broad scope of civil discovery allows family law litigators to request entry onto designated land or property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”¹

While a formal request under this section is typically unnecessary to complete appraisals –represented parties commonly allow entry for such purposes informally – a request for inspection can be made for other purposes.

For example, a party may want to take photos of a certain physical condition on property possessed by the other party.

It is important for family law practitioners to remember that they have a right to request entry on premises controlled by the other party for broad discovery purposes.

Conclusion: Add These to Your Toolbox

While the discovery methods discussed above may not apply in all family law matters, Wisconsin family law practitioners should keep them in their repertoire for when a discovery situation calls for it.

The Family Law Section is offering scholarships to upcoming virtual CLE seminars – Advanced Skills & Techniques for Family Law Practice on Oct. 21, 2021, and Family Law: How to Avoid an Ethics Complaint on Dec. 8, 2021. Please see the scholarship application on WisBar.org for eligibility, at Advanced Skills Scholarship and Avoid an Ethics Complaint scholarship.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section webpages to learn more about the benefits of section membership.

Endnote

¹ See Wis. Stat. § 804.09(1).