Discovery and use of experts

AuthorAnnette J. Szorosy/Stephanie Matalon
ProfessionGeneral Magistrate/General Magistrate
Discovery and Use of Experts
Discovery rules intend for discovery to be achieved with a minimum of or no judicial involvement. Only a few
of the provisions for the various forms of discovery require motion and order. Discovery in a family law case is
less and less similar to discovery in other civil cases and is intended to be so. The lawyer doing the occasional
family law case should beware. For example, mandatory disclosure in family law cases is unique and automatic.
On November 12, 2020, the Florida Supreme Court made substantial amendments to Florida Family Law Rule
of Procedure 12.285, governing Mandatory Disclosure, to clarify the service requirements and provide greater
specif‌icity as to when required documents must be served on the other party. The amendments also increase
the time period for producing various documents, specify in more detailwhat documents should be produced,
and expand the types of documents that should be produced. [In re Amendments to Florida Family Law Rules
of Procedure-2020 Regular-Cycle Report, 45 Fla. L. Weekly S291 (Fla. Nov. 12, 2020).]
The family lawyer’s focus is as a transactional lawyer with the primar y goal of discovery as full f‌inancial disclo-
sure to prepare for mediation, amicable resolution, and an uncontested f‌inal hearing. Discovery compliance is
required in uncontested as well as contested family law cases. The most common error made in an uncontested
case is failure to obtain a sworn f‌inancial aff‌idavit and child support guidelines worksheet prior to entering
into any agreement. A f‌inancial aff‌idavit and a child support guidelines worksheet (if there are children) are
required in every case, and they must be prepared accurately.
Even in contested cases, the rules provide the mechanism for obtaining discovery without court involvement. In
therapeutic justice, discovery goals are to minimize the emotional nature of the family law case and proceed
with only relevant discovery in the legal dissolution of marriage. Sanctions for violations are now mandatory
if the procedures for seeking and showing violations of discovery are proven. Discovery should not be used as
a mechanism to foment the emotional trauma over the breakup of the marriage, allowing one party to batter
the other, for example, in deposition, to make the other party “pay” for perceived inf‌licted wrongs.
A. Basic Points
§12:01 Financial Aff‌idavit Is Most Important Document
§12:02 Reality Training in Discovery Process
§12:03 Discovery by Family Lawyer as Transactional Lawyer
§12:04 Fraud or Perjury in Discovery Process
§12:05 Use Mediation and Early Case Management for Discovery and Discovery Problems
§12:06 Special Issues in Parental Responsibility and Parenting Plan Litigation
Florida Family Law and Practice 12-2
§12:07 Using Social Investigation Instead of Guardian Ad Litem; Parenting Plan Recommendation
§12:08 How to Effectively Use Social Investigation
§12:09 Standards of Professional Courtesy Reach Higher Than Rules of Professional Conduct
§12:10 Scheduling Cooperation
§12:11 Cooperation in Discovery Process
§12:12 Judicial Use of “Good Faith” Form for Discovery and Other Motions
§12:13 Change in How to Conduct the Business of Family Law
§12:14 Judicial Use of Special Magistrates to Oversee Discovery
§12:15 Impact of Duty of Candor
§12:16 Inadvertent Disclosure of Privileged Materials
§12:17 Impact of Electronic Filing and Supreme Court Rule Changes on Discovery
§12:18 Application of Foreign Law and Enforcement of a Judgment or Order
of a Court of a Foreign Country
B. Strategic Considerations
1. General Strategies
§12:20 Relationships With Experts
§12:21 Off‌ice Management
§12:22 Choosing Discovery Methods to Use in Particular Case
§12:23 Using the Internet
§12:24 Discovery Immediately Upon Hiring
§12:25 Client’s “Homework”
§12:26 Financial Aff‌idavits
§12:27 Psychological Information
§12:28 Meeting in Month
§12:29 Keeping Discovery Documents From Public View
2. Deposition Strategies
§12:40 Preparing for Depositions
§12:41 Deposition Instructions
§12:42 Remembering Some Rules
§12:43 Deposition “Grab File”
§12:44 When and Where to Schedule Depositions
§12:45 Subf‌ile Review and Compilation
§12:46 Mentor Lawyers Consultation
§12:47 Experts Consultation
§12:48 Friend Lawyer Reciprocal Assistance
§12:49 File to Bring to Deposition
§12:50 Deposition Style
§12:51 Client
3. Expert Strategies
§12:60 When to Hire Expert
§12:61 Utilizing Expert to Assist in Discovery
§12:62 Utilizing Expert in Settlement Negotiations and Mediation
§12:63 Preparing Expert to Testify
§12:64 Accountants
§12:65 Vocational Evaluation Expert
C. Discovery Steps After Filing
§12:70 In General
§12:71 Duty to Supplement Disclosure
§12:72 Upon Receipt of Propounded Interrogatories
§12:73 Upon Receipt of Florida Family Law Rule of Procedure 12.350 Discovery Request
§12:74 Upon Receipt of Florida Family Law Rule of Procedure 12.351 Documents Request
§12:75 Upon Receipt of Requests for Examination of Person
§12:76 Upon Receipt of Requests for Admissions
12-3 Discovery and Use of Experts
D. Handling Problems
§12:90 Problem Clients
§12:91 Problem Lawyer
§12:92 Problem Client for Opposing Lawyer
§12:93 Problem With Respondent’s Financial Aff‌idavit
§12:94 Problem With Other Discovery Responses From Respondent
§12:95 Objections to or Incomplete Discovery From Respondent
§12:96 Problem With Psychological Evaluation Report
§12:97 Problem Case From Court’s Perspective
§12:98 Minimize Fees and Costs Related to Discovery
§12:99 Protect Client
§12:100 Protect Yourself
§12:101 Self-Represented Out of Control
§12:102 Non-Parties and Discovery
§12:103 Receipt of Documents Mistakenly Sent or Produced
A. General Provisions
§12:110 Summons to Include Notice of Mandatory Disclosure
§12:111 Exceptions
§12:112 No Waiver of Financial Aff‌idavits and Child Support Guidelines Worksheets
§12:113 Originals and Copies
B. Temporary Financial Relief
§12:114 Time for Production of Documents
§12:115 Disclosure Requirements for Temporary Financial Relief
C. Initial and Supplemental Proceedings for Permanent Relief
§12:120 Production of Documents Within 45 Days of Service
§12:121 Certif‌icate of Compliance
§12:122 Parties’ Disclosure Requirements
§12:123 Disclosure—Financial Aff‌idavit
§12:124 Disclosure—Child Support Guidelines Worksheet
§12:125 Disclosure—Income and Taxes
§12:126 Disclosure—Deeds, Leases, Notes, Credit Transactions
§12:127 Disclosure—Financial Transactions
§12:128 Disclosure—Investments and Life Insurance
D. Duty to Supplement Disclosure; Amended Financial Aff‌idavit
§12:140 Continuing Duty; Material Change
§12:141 If Amended Financial Aff‌idavits; Supporting Documents
§12:142 Sanctions
E. Complying With Mandatory Disclosure
§12:150 Extension of Time
§12:151 Objection to Mandatory Automatic Disclosure
§12:152 Place of Production
§12:153 Failure of Defaulted Party to Comply
A. General Provisions Governing Discovery
§12:160 Rule 12.280
§12:161 Discovery Methods
§12:162 Scope of Discovery—Privileges
§12:163 Scope of Discovery—Relevance and Admissibility
§12:164 Scope of Discovery—Work Product Limitation
§12:165 Florida Supreme Court Replaces Frye Standard with Daubert Standard

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