Juan de Villalobos and Francisco de Silvera made the discovery of Virginia in 1540, an event that came as a bit of a surprise to the Eastern Chickahominy, Cheroenhaka (Nottoway), and Patawomeck nations who inhabited the area for thousands of years. Another type of discovery is less controversial: discovery in a legal proceeding.

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The American Bar Association tells us discovery is the formal exchange of information in a hearing or trial. Discovery lays out the evidence and witnesses to be called, so both sides can prepare to present their strongest case.

Depositions

Depositions are statements made under oath but not in the courtroom. They can be used during a family law hearing, or they can be used to help with negotiations and preparation before trial.

Depositions can be videotaped testimony, a written transcript, or both. A deposition of a witness will never take place with only one attorney representing one party; both sides will be present. The two sides are each allowed to examine and cross-examine a person giving a deposition.

Sometimes a witness can offer a deposition but cannot be at the hearing, in which case the deposition serves as the admissible testimony.

Depositions can also be used to rebut or refute witness testimony given in court. If a deposed witness also testifies in court, the opposing side can probe for inconsistencies between the deposition and the courtroom testimony.

Depositions can come from any witness, but in family law matters, experts have the most impact:

  • Private investigators
  • Forensic accountants
  • Real estate agents
  • Medical professionals
  • Tax preparers
  • Mental health professionals
  • Child caregivers and specialists
  • Guardian ad litems

Interrogatories

Along with depositions, interrogatories are another way to get evidence into the court record. Interrogatories are a series of written questions a witness has to answer in writing and under oath.

Suppose you and your attorney want your spouse to explain, in writing, how money disappeared from your joint bank account in the months after you asked for a separation but before the divorce. Your attorney drafts a list of questions and submits them to your spouse’s lawyer. Your spouse has to provide clear, honest answers to all the questions. The answers are equivalent to sworn courtroom testimony.

Under Rule 4:8 of the Virginia Supreme Court, interrogatories are limited to 30 questions.

Physical Evidence

In a family law matter, physical evidence can be paperwork:

  • Financial records
  • Medical records
  • Bank statements
  • Credit card statements
  • Retirement account statements
  • Family calendars
  • Tax returns
  • Emergency room reports
  • Mortgages and deeds
  • Prenuptial agreements
  • Property settlement agreements

Physical evidence can also be videotapes, audio recordings, and photographs:

Physical evidence can be from electronic devices:

Rarely, physical evidence can be sentimental or significant items from the marriage:

  • Heirlooms
  • Jewelry
  • Artwork
  • Collectibles

In all cases, physical evidence has to be authenticated. A spouse cannot just bring in an aluminum baseball bat and claim you hit her with it. Police reports, a chain of evidence, and other means of authenticating every item is needed to prove the veracity and pertinence of the item.

Witnesses

Two types of witnesses may appear at a family law hearing: a fact witness and a character witness. Fact witnesses report what they have seen or heard firsthand. Character witnesses speak to the personalities and motivations of the two spouses.

Generally, four categories of witnesses appear in a Virginia courtroom to offer in-person testimony:

  1. The two opposing parties (you and your spouse)
  2. Family members
  3. Friends and acquaintances familiar with particular issues
  4. Expert witnesses

Medical experts (psychiatrists, clinical psychologists, licensed clinical social workers, licensed professional counselors, licensed marriage and family therapists, or other experts appointed by the court) are reimbursed for mileage and paid $100 a day for serving the court. This is in accordance with Code of Virginia § 16.1-361. Most other witnesses are not paid.

If you work with your attorney to gather a list of witnesses, your attorney will provide a minimal amount of pretrial guidance to them, to prevent them from saying too much or saying things injurious to your case. Most witnesses are advised to answer a question and then stop talking.

Contrary to television law, practicing a witness’s testimony is not only legal but also a wise precaution. A witness who gets easily rattled in practice cross-examination may need repeated rehearsals to become comfortable with testifying.

Most family law attorneys strive to present witnesses that are:

  • Trustworthy
  • Relevant to the case
  • Likable
  • Believable

Seldom will an attorney put a minor child on the witness stand, but it can happen. Children can be asked in camera (in the judge’s chambers, not in open court) which parent they would prefer to live with, if they are worried about anything related to either parent, or if they had any issues with visitation or custody.

The Firm For Men has years of background knowledge on providing discovery and processing evidence from opposing counsels. From interrogatories to expert witnesses, the experienced attorneys in our firm can handle it. Contact us today or telephone our Virginia Beach office today at (757) 383-9184.