Self-represented litigants are often reluctant to start their own discovery or object to discovery sent to them by an attorney. There’s this assumption that the attorney knows all and is in charge.
Truth be told, a lawyer is not in charge of your pro se case. In fact, you know your case better than any lawyer. Reluctance to take charge of it can land you in deep muck if you don’t object at the right time. Below is a cautionary tale about that.
Buster and the Divorce
Buster and his wife, Estelle, were divorced. Estelle had a lawyer, but Buster did not. Estelle initially filed for custody of the couple’s seven-year-old daughter and four-year-old son, for title to the largest of three houses, and child support in the amount of $3000 per month.
In settlement, the couple agreed to Estelle’s custody request with Buster getting visitation. Estelle was also awarded the house she wanted and child support. Buster received two smaller houses and two-thirds of the couple’s savings, most of which he’d brought into the marriage.
The case progressed slowly for three years because of Buster’s mental and physical illnesses. He suffered from bouts of depression and allergies, including allergies to the medication he’d been prescribed for his mental illness. Yet he’d been able to hold down a good job because he worked from home and had flexibility in his work hours.
When he became too ill to work every day, Buster knew it was in his best interest to request a change in the settlement agreement. He wanted a change that would provide only $1500 a month in child support.
He found appellate cases that strongly supported his point of view and filed a motion to amend the agreement.
In response to his motion, Estelle’s attorney sent him a set of interrogatories. While most of the questions focused on Buster’s income, one in particular asked about his new girlfriend, Jessica, and whether she was living with him.
Buster didn’t think Jessica had anything to do with his divorce case, and the question made him feel uneasy. Still, he didn’t have anything to hide, so he shrugged and thoroughly answered the question. He completed the entire set of ten interrogatories as best he could.
At the hearing on the motion, the judge gave Buster and Estelle’s attorney each ten minutes to argue their positions. Buster took five minutes and sat down.
Unsurprisingly, Estelle’s lawyer argued to uphold the agreement as written. His points were weak, and Buster knew it. Then, things started to turn. The attorney argued that Buster sought to reduce his child support not because of less income but because he was financially supporting Jessica.
A stunned Buster objected. There was no proof of that. When the judge asked his grounds for objection, Buster replied, “It’s irrelevant.” The judge overruled the objection, stating that Buster made it relevant by answering the written interrogatory about Jessica.
In the end, the judge ruled to keep the terms of the original agreement despite what Buster thought was strong case law on his side. Buster appealed because he felt the judge had not followed the law. He lost. He was unable to show the appellate court that the judge was wrong. He’d lost when he should have won.
What Went Wrong?
Had Buster done two things, the Court’s decision might have been different. Buster should have (1) objected to the discovery question about Jessica, and (2) prepared for the Jessica question to come up in court.
Buster was smart to object in court when the Jessica issue arose. Unfortunately, by then it was too late.
He didn’t object to the interrogatory about Jessica despite his misgivings. In fact, he didn’t object to anything in writing. That gave the lawyer an opportunity to put his own spin on the situation.
Failure to object to discovery can lead to results you don’t want. In Buster’s case, failure to object to the discovery question supported the trial judge’s conclusion that the Jessica issue was relevant. Once that happened, the money issues related to her were fair game.
Buster could have turned things around had he prepared for an argument regarding Jessica. The question on the interrogatories made him “uneasy”, but he never asked himself why it was there. Had he done that and preempted the attorney’s argument, he might have stood a chance.
The Moral of The Story
Always object to objectionable things in discovery even at the risk of sanctions. The sanctions are never as bad as losing a judgment. So, object, object, object.
Sample Ways to Object to Discovery
To get you started, below is a short list of discovery objections and the context, written or oral, in which they usually arise. A more in-depth review of objections can be found here.
Irrelevant (Written/Oral). The request or question calls for information that is not relevant to a claim or defense.
Privileged (Written/Oral). The request or question calls for privileged information.
Conclusory (Written/Oral). The question or request seeks an opinion or conclusion without establishing a proper foundation. This happens most often when discovery is incomplete.
Hearsay (Oral). The question invites a witness to offer unsubstantiated evidence.
Leading (Oral). The question prompts a witness to offer an assertion or desired answer.
Unduly burdensome (Written). The information requested is obtainable from some other source that is more convenient, or less expensive.
Over-broad (Written). The question or request lacks specificity. Lawyers refer to these types of questions as “fishing expeditions” where an opponent will request a wide range of documents or information using vague terms like, “relating to”.
Vague or ambiguous (Written). The question lacks specificity about things like time or place.
Argumentative (Witness). The question requires speculation or appears to challenge a witness’s credibility.
Asked and Answered (Written/Oral). The request or question has been previously answered.