Divorce should follow same rules as other civil litigation

This Web only Speakout has not been edited.

Ed Lederman

Published January 25, 2008 at midnight

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The aggressive use of discovery is to litigation what “boots on the ground” is to modern warfare. It is the meat and potatoes of the fight. The power to command reams of information and the power to depose can be (and often is) the power to weaken, distract and otherwise beat down the opposition. And that is as it should be. Rule 26 of the Colorado Rules of Civil Procedure contains many of the game instructions regarding discovery.

Discovery in divorce has its own set of rules as distinct from other civil matters. Until about five years ago there was a Colorado Rule of Civil Procedure 26.2 (Get it? We have a point something attached to it and it constitutes discovery rules for “domestic” matters). Fine, but the fact was, in all essentials, 26.2 mirrored good ‘ol Rule 26. Then, recently came 16.2.

It seems that the Colorado divorce zeitgeist demanded an even more distinct set of civil procedure rules for “family” matters. This writer has in print made some quibbles over one aspect of Rule 16.2, the financial affidavit. What follows is yet another quibble.

“Experts” can be critical in a case. In the general civil context it is recognized that any given expert in a case is a witness (and, less directly, a hired gun) for one party or the other. This, too, is as it should be. It is for the court and/or jury to evaluate the expert; to understand that whatever information/opinions the expert sets forth is done in the context of being an expert for one or the other party.

But, when it comes to divorce, Rule 16.2 knows better. After all, aren’t we in the domestic field? And doesn’t that require a whole different set of rules, attentive to the delicate sensibilities of the transaction at hand: the divvying up of the economic product of the marriage? In this practitioner’s opinion the answer is “No.” There is no valid reason to have a different (from general civil) process for divorce proceedings.

In fact, I submit, the effort to do so makes the process even more destructive than if left to its own general civil sensibilities. As Exhibit “A” I point to the following verbiage in 16.2 (g): “Use of Experts. If the matter before the court requires the use of an expert or more than one expert, the parties shall attempt to select one expert per issue...". This is done to be “cost effective” (Rule 16.2 (b)). Now first off lets be clear about what type of “experts” we are talking about here.

We’re talking economic experts, not custody experts. Sixteen point two, thank god, in no way affects the appointment of the “Child Family Investgator".

That critical area is governed by statutory (as opposed to procedural) law.

What can be more destructive than foisting on a case an “expert", who knows which attorney brought him/her to the dance, as a court sanctioned impartial expert? Let’s take a hypothetical: A divorce in which the critical economic issue is the value of a gun collection. The claiming party will want that number to be bigger, the possessing party wants it to be smaller. That number can (and often is) the substance of the case. And there is going to be a “joint” expert to determine the case? I don’t think so. That is I don’t think so for the majority of cases.

Certainly if the parties agree as to an expert. And if the work product of that expert does not offend either of the statesmanlike counsel, great.

Money is saved. But we do not need a fatuous 16.2 to do that. No, the only thing that the “joint expert” provision accomplishes is to give an immense advantage to counsel who has extensive relationships with the right “experts", and the ruthlessness to proceed in bad faith.

In any event, as a divorce practitioner, I believe only mischief waits in varying divorce procedure from general civil procedure. Divorce (excluding the custody issue) is like any other civil procedure, only more so.

Ed Lederman is an attorney in Denver.

• January 29, 2008

  3:22 a.m.

  Suggest removal

  I_am_not_fooled writes:

  Well doublechubby,

  Obviously this is not your subject, why did you bother reading it?

  Mr. Lederman, I find your speakout very interesting. The question though is why would somone place such a one-sided advantage in the civil procedures?

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