WHY THE NEW RULES DON'T WORK IN FAMILY LAW CASES
By: Kenneth G. Raggio
Raggio & Raggio, P.L.L.C.
Dallas, Texas

This is the author's submission to the Texas Lawyer of an article that was published on December 6, 1999, in the special issue on Family Law. The article's title was changed to Discovery Rules Don't Work in Family Cases by the editor.  Justice Nathan Hecht, in his remarks to the 2000 Advanced Family Law Course indirectly responded to the points in this article, as well as other concerns expressed by the Family Law Bar.  An article summarizing his comments is at http://www.raggiolaw.com/hecht.htm.

NB:  In March, 2001,the Supreme Court Advisory Committee  made recommendations to the Supreme Court that, if adopted, will adopt many changes specifically tailored for the family law practice, many of which are detailed in the following article, as well as in Justice Hecht's comments. 

The new Discovery Rules were adopted with appropriate flourish eleven months ago, and for many litigants and types of cases the goals of eliminating ambush and hiding-the-ball type of discovery have been realized. But for the majority of cases filed in Texas, family law cases, the results have been much different.

The primary reasons for the lack of utility of the new Rules with deadlines is that the Rules seem to primarily designed for cases involving a static historic event, rather than an evolving, dynamic situation. A family law matter is a dynamic evolving series of events where the new Rules cause unintended consequences and anomalies. Some examples follow:

• •Subpoena Response Time. Rules 199.2(b) (5) and 196.2(a) both allow thirty days before a

witness-even a party-can be compelled to produce documents. The typical contested family law case starts with an Original Petition being filed and with a Temporary Restraining Order many times being issued against the other spouse (such TRO, thankfully, still being without a bond), which must be set for a Temporary hearing within fourteen days. This could result in monetary issues (or interim attorney's fees, payments of debts) to have to wait for over an additional two weeks to get the subpoenaed information upon which the Court could base a Temporary Support Order. This new Rule is not well suited for cases that have immediate activity at the front end.

• •Request for Disclosure-Response Time. In a contested situation, a Respondent that has been

served with pleadings can immediately serve back on the Petitioner a Request for Disclosure which is due in thirty days, whereas the minimum time for the Respondent is response served at that time is fifty days. This obviously gives the Respondent a chance to sit back and look at Petitioner's disclosures before having to formulate his own.

• •Request for Disclosure-Content. Clearly the family law bar was not at the table of influence

in selecting the 194.2(g)(h)(j)(k) Rules, as these would seem applicable only to personal injury suits. Couldn't the rule just as easily ask for "binding contracts" on the parties-such as premarital or post nuptial agreements, which are about as relevant to a personal injury case as indemnity agreements, etc. are to a divorce case? Weren't these Rules of Procedures supposed to be applicable to all civil cases and not specifically tuned for one specie?

• •Disclosure-Content Part 2. The disclosure of fact and expert witnesses was covered by the

preexisting rules and by sound practice. But the new rules give little concern to the fact that persons with knowledge of relevant facts in a family law matter is typically a much wider universe of persons than the typical personal injury case. Many times the issues in a case typically change in emotionally charged situations like a divorce as perceptions and objectives may shift over time. Further the State of Texas has a policy of fostering a hope for reconciliation of a marriage right up until the time of the divorce. So what is the use of "pouring gasoline on the fire" by having to quickly and early in a case produce (under penalty of sanctions for withholding) some of the awful things that one party knows about the other? For example, if the child custody arrangement is worked out, is then a daycare worker who saw one parent strike a child a person with knowledge of relevant facts? Once a "relevant fact" like this is disclosed publicly, many times a case takes a dramatic turn to self vindication and righteous indignation, which could be avoided by not having to make disclosures so untimely, i.e.-that is too quickly or prematurely.

• •Discovery Deadlines. Both in a Level 1 and Level 2 Discovery Plan, the cutoff for discovery

and supplementation of discovery is thirty days prior to trial. This clearly conflicts with the mandate of the Court to consider the most current information with which to conduct a just and right division of the property. Thirty days can be an eternity in a divorce for changes, once again, reflecting that dynamic fact pattern that exists in a family law case. Would you take a portfolio that was valued thirty days ago without inquiry to its current worth? For instance, for a January trial, end-of-year financial information showing income, account balances, capital gains, etc. may not be available from a subpoenaed financial institution at any time in January, even if they were duly served more than thirty days from the trial date with a subpoena. Because the document didn't exist thirty days prior to the production date, can the account-holding spouse direct the subpoenaed financial institution to insist on the thirty days production even if the institution was willing to waive it?

• •Expert's Depositions/Drowning the "have not". In family law custody cases it is common

for there to be expert testimony. There is very often an imbalance of the financial position between the parties, although the Court has the potential power to correct this with an award of interim attorney's fees from available resources of one or the other spouse in a divorce. Not so in a post divorce custody case. A spouse claiming that the children and the spouse were abused by the other spouse can continue to be abused by the legal process in that the other spouse can force the have-not spouse to pay for extraordinary long depositions of an expert, as the spouse producing the expert is getting "double billed" -billed by the party's lawyer and by the expert.

• •Designation of Experts. Since many of the inquiries areas of a expert's report and his

recommendation of dealing with the parent-child relationship are based on current facts and information as well as historical facts and information, the requirement of having to designate an expert perhaps up to 120 days in advance (Rule 195.2(a)) doesn't work well for soft and evolving situation issues such as in a parent-child relationship, or even for some property evaluations. Potentially, an expert could be barred by the thirty day discovery deadline and not even get to see a child for a month prior to trial. Thankfully, family court judges are making practical decisions instead of following the folly of the literal application of the rules.

• •Where Rules Do Work. The new Rules do have the intended effect even in family law cases,

as it makes for routine and fairly extensive disclosure, and can reduce costs by allowing service of a subpoena on the lawyer. A 194.2 Request for Disclosure, a production request and few interrogatories can basically get a huge wealth of information that can lead to expediently resolving a family law case. Any party can always request converting the discovery control plan to a Level 3 (from the typical Level 2) so that the supplementation may be made up to right at the date of trial. So despite the clear bias in the new discovery regime toward resolving an historical event, which is typically only a small part of a dynamic and continuing-to-evolve family law case, family law attorneys are adjusting their practice to the new regime. We just hope we have a seat at the table on the next go around of Rules changes.

05/29/01 http://raggiolaw.com/art-rul.htm