I’m Not Telling and You Can’t Make Me
We have all seen shows on television where the case is mid-trial, someone is sitting in the witness box being examined by an attorney pacing in front of the witness box or leaning on the jury box only for the courtroom door at the back of the room to open, someone make a dramatic entrance and either be the “surprise” witness or hurry to the front of the courtroom to have a whispered discussion with one of the attorneys for the attorney to then say “Your Honor, if I may have a brief recess…” Dun dun dun…
Well, that is on television and in the movies. In the real world, there is something called discovery and a duty of fairness. There is no dramatic entrance by a surprise witness. There is no groundbreaking revelation whispered to the attorney that rocks the litigation to its core. Why? Because unlike on television and in the movies, no one is permitted to call a witness or use evidence that was not first disclosed to the other side with enough advance notice to allow them to perform their own due diligence. That is called “discovery”. Makes sense, right? Each party has a right to “discover” what they need to know to present, prosecute and defend their case. Perfectly logical. R. 4:10-2 provides, in pertinent part,
[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of matters at to which discovery is sought. (Emphasis added).
Discovery rules are designed to do the exact opposite of that which we watch on television. They are designed to ensure that everyone is on the same page, has all the same access and information and any skeletons in the closet are dusted off and brought out into the open. Full disclosure. No surprises. Our justice system does not value hiding the ball or the tax returns, or the bank records, or the family jewels or whatever else it is that has suddenly gone missing.
In family law cases, economics are often an issue, whether it is alimony, equitable distribution, child support, college contribution and/or counsel fees. That is why we have our own special Case Information Statement (CIS) and rules that apply to the CIS. We hear over and over again someone is hiding things – cash, bank accounts, credit cards, important documents, assets, debts, etc. And that may be true at times. Are there people who surreptitiously hide things hoping the other party never finds it? Probably. Is that always the case? No. Is there a way to get the information? Usually. There are several Rules specific to different forms of discovery all designed to eliminate surprise and ferret out the information needed.
So the next time someone says that they won’t tell you where the missing (fill in the blank) went, keep in mind that there very well may be a way to get it in discovery even if your adversary won’t tell.
Julie Burick, Esq. is a partner and shareholder with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky, PA. She has focused her practice on all aspects of divorce and family law to include complicated appellate cases. No matter what the facts of your particular situation having an attorney who has significant experience and knowledge of the law is important to resolving your matter quickly and fairly.