The Discovery Step - Texas Family Jury Trials


If you are set for a Texas family jury trial, then you have likely already at least heard of 'discovery'. Discovery is the organized system in the Texas Rules of Civil Procedure for parties to exchange information with each other prior to trial. That way, each party and their lawyers have access to the same information and (hopefully!) there are no surprises at trial. This is why many cases actually settle in the discovery step - because sometimes a party will realize that they just don't have enough evidence to win at trial or perhaps the evidence against he/she is too damning to win at trial.

Discovery is meant to serve as a mechanism for both sides to prepare for trial. If proper discovery has been done, documents, recordings, emails, and other evidence that have not been produced should not be allowed to be introduced in a final hearing. Moreover, if the parties do decide to settle their case, the parties would get a more fair settlement knowing the extent of each side's evidence. When involved in a Texas family jury trial, you have to keep in mind that all of the evidence presented will likely be observed by the jury. It is pretty understandable that some people back down from the lawsuit once the case has been set for a jury trial following the discovery step.

Despite what you see on TV and in the movies, cases with good lawyers who have conducted adequate discovery rarely have any surprises once they get to the final trial. It is pretty rare that there will be a surprise witness or evidence introduced for the first time at trial if your lawyer has done his or her job. There must be some extenuating circumstance such as one in which the evidence had just come into that party's possession and the party had no prior knowledge that such evidence existed before then. Even then, the judge will weigh the evidence's probative value against the prejudicial effect that it will have on the surprised party and decide whether or not such evidence can be used in court.

You should be sure to hire a lawyer that has plenty of experience with discovery. Your lawyer should be prepared to review all of the discovery produced by the other side carefully. If they have produced it to you, there is a high likelihood that they intend to use that evidence at trial in front of the jury.

What are the Types of Discovery?

There are multiple ways that each party can request information from the other side. If requests for discovery are ignored or inadequately responded to, the lawyer as well as the party could be sanctioned (i.e. punished) by the court. The court could rule that you cannot use any of your evidence, you can have pleadings striken, you can be "fined" and have to pay for your non-compliance, etc. Here is the type of discovery that you can expect to see:

  • Request for Production - Each party can request that the other party produce relevant documentation.
  • Request for Written Interrogatories - This is where each party can ask the other specific relevant questions. The other party has a deadline to respond and must respond adequately and truthfully.
  • Request for Disclosure - This is mostly used for the other party to request the disclosure of the other party's witnesses (expert & lay). If a witness wishes to testify at trial, they must timely be disclosed to the other side.
  • Request for Admissions - This is a series of statements of which the requesting party has the other party answer each question with either , "admit" or "deny".
  • Depositions (Subpoenas) - This is when the party will be subpoenaed (or forced) to appear at a place typically outside of court to give sworn testimony regarding the case. It is important that you are honest during any deposition because if you are caught being dishonest, that deposition transcript (which will be transcribed by a stenographer/court reporter and/or video) can be used to impeach you as a witness. If a lawyer can prove that you were dishonest, your credibility goes out of the window.

What Kind of Information Will You Have to Give?

Be prepared for a full and invasive exam of everything relevant in your life during your marriage or since the child's birth. If relevant, nearly anything can be touched. This includes, but of course is not limited to, your text messages, phone records, bank statements, journals, credit card statements, social media profiles, and sometimes even your purchase receipts. What is relevant will depend on the issues at hand and the accusations made by one, either, or both parties.

There really is not anything off-limits, except maybe a few private medical details (and most of those are fair game). This is largely true even in a non-divorce child custody matter. The other party may be entitled to details and documentation regarding your:

  • Finances (tax returns, debts, business records, credit reports, bank statements, etc.);
  • Communication (emails, text messages, IM messages, phone records, social media accounts);
  • Your Medical History (mental treatment & issues, substance abuse issues, anything that may impact custody of the child;
  • Sexual Behavior (Unusual Practices, Affairs, Paramour);
  • Parenting Skills (anyone’s parenting skills that will be in physical possession or have access to the child; and,
  • Relationships (your family, friends, co-workers, neighbors, employers, etc.).

When considering the information that is discoverable, the list goes on. It can be pretty horrible: your elderly mother could be deposed and asked some pretty embarrassing questions about your past. What if your doctor is subpoenaed to court to testify to your extreme depression? Could you and your neighbor's relationship survive if he or she testified against you in your custody case? Probably not, right?

People do get away with lying and hiding things in Court, even with discovery being conducted. But, a good lawyer with a proper budget can usually minimize this. Additionally, the consequences for lying or hiding evidence during discovery are severe. Most people are better off just being open and taking their lumps as they are given. Be upfront with your lawyer or you could risk losing your Texas family jury trial during the discovery step.

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