In most cases, the first formal notice of a family law dispute in Utah is the complaint. This is a legal document written in very general terms alleging some cause of action, i.e., the way a party has been harmed. If you have been served with a notice of a family law dispute in Utah, contact an experienced Magna Utah family lawyer. The attorney will review the complaint and advise you in the course of action. Family law is complex. Never attempt to navigate the complex maze of Utah family law without the assistance of an experienced Magna Utah family lawyer.
Affirmative Defenses In Family Law
Provided there are no objections to the complaint, the opposing party files an answer. In a typical answer, all claims are denied and so-called affirmative defenses are presented. An affirmative defense is a legal basis to bar a plaintiff from recovery, even if the allegations in the complaint are true. Affirmative defenses refer to legal grounds for dismissal, as opposed to factual grounds.
Common affirmative defenses are waiver, assumption of the risk, and statute of limitations. A waiver is an action by the plaintiff that results in giving up the claim. For example, a plaintiff waives the right to sue by signing a settlement agreement before initiating litigation. The defense of statute of limitations refers to the expiration of the legally established time limit for asserting a claim.
In addition to affirmative defenses, a defendant may assert a claim against the plaintiff or another party. A claim made by the defendant against the plaintiff is called a counterclaim. Third-party claims involve shifting the responsibility to another party. The defendant states that he or she was not responsible but rather a different party-the third party-was. For example, a third-party claim could involve the shift of responsibility from the prime contractor to a subcontractor. For any affirmative defense or third-party claim, the burden of proof resides with the defendant.
Complaints, affirmative defenses, and counterclaims combine to create the pleadings in a case and define the legal issues, factual contentions, and theories of relief or defense. Pleadings must be specific enough to substantiate litigation without dismissal, while at the same time broad and ambiguous enough to allow for amending or fine-tuning claims and defenses as the litigation unfolds.
Family Law Discovery
Once all the pleadings have been filed, the next stage of a lawsuit is discovery. Discovery is the formal pretrial process of fact-finding in which lawyers from both sides are able to obtain facts and information about the opposing party’s case. During discovery, each party gives the opposing party access to information, documents, and key witnesses with pertinent facts. A primary purpose of discovery is to ensure that cases are decided based on the evidence known in advance, rather than as a result of surprises in the courtroom. Attorneys from both sides use the information provided during discovery to develop their strategies for trying the case.
Discovery is comprised of three primary parts: interrogatories, requests for production of documents, and depositions.
The intent of discovery is to gather information and facts relevant to the case. While the scope of discovery is broader than the scope of admissible evidence in trial, unreasonably broad requests for information, sometimes called “fishing expeditions” are not allowed. Requests cannot be overly broad or cause undue burden on the party answering them. Information must be relevant and must lead to the discovery of admissible evidence.
Cases can be won or lost during discovery. Sometimes key information is never properly requested from the other side; key documents may not be identified or, conversely, there may be so many documents that they cannot be properly tracked or inspected. To be successful as an expert witness, you must know the strategy and tactics required to organize yourself and your information most effectively. Courts encourage both sides to become knowledgeable about the facts and relative value of their positions in the hope that a settlement can be reached prior to trial. In the event that the case does go to trial, proper discovery and preparation can expedite the case. As a result, discovery is often the most time-consuming aspect of litigation, in some cases lasting years.
Production of Documents In Family Law Cases
During the discovery process, any party may serve any other parties with a request asking them to produce certain documents relevant to the dispute. Speak to your Magna Utah family lawyer and discuss with him or her the documents that you believe should be produced in your case. Not all documents need to be produced. It’s best to let your Magna Utah family lawyer take a call.
While most documents and records are subject to production, some that are classified as privileged are protected and therefore need not be produced. Privileged information falls within the following three categories:
• Attorney-Client Privilege. Communications between a client and his or her attorney during the course of representation are not discoverable.
• Work Product Privilege. Documents prepared in anticipation of litigation under the supervision or at the direction of an attorney are not discoverable. Working papers under the direction of an attorney, such as notes of telephone conversations, are also exempt from discovery. But be careful what you write. Some work product documents can be discovered, such as calculations that can and most probably will be introduced as evidence. Also, there are times the judge will require you to produce documents if the information is no longer available from another source. You may have the only copy of an important drawing, for example. If you are designated a testifying expert at some point, you may be required to produce all work product. Unless you are retained specifically as a consulting expert and are not expected to testify, assume that your work product will be discoverable.
• Proprietary Processes and Patents Privilege. Information that is vulnerable to exposure to competitors may be exempt, or it may be subject to production under a protective order issued by the court. You can be of great assistance to the lawyer in understanding what is and is not proprietary
Your opponent may employ feast-or-famine discovery tactics. When the “feast” strategy is used, boxes and boxes of documents are produced. Most of the material is of little or no interest, creating a document bottleneck that can inhibit valuable materials from being found. Conversely, when the “famine” strategy is employed, documents are produced to the other side only when they have been specifically requested, or if the court compels their disclosure.
In either case, obtaining any useful documents is the challenge. Obtaining judicial relief from burdensome discovery strategies is equally challenging. Judges prefer to allow cases to proceed with minimal court direction during the discovery phase, with the parties working out their differences.
Organization of Documents
Complex family law dispute cases may involve lots of documents. Seek the assistance of an experienced Magna Utah family lawyer. Parties cannot simply throw together or mix up documents when responding to a production-of-document request. To keep track of documents, an experienced Magna Utah family lawyer usually prepares an index of all discovery documents. In some cases, the court requires each side to provide such indexes.
Preparing for a Deposition
An experienced Magna Utah family lawyer can assist you with your deposition. How you prepare for the deposition can determine how you perform in the deposition. It can have a significant impact on the outcome of the case.
Preparation for a deposition is different than preparation to testify at trial. Preparation is very important. Speak to your Magna Utah family lawyer before your deposition. To be most effective, you must know the difference. Certainly, in preparing for a deposition, you must be knowledgeable of the technical aspects within your expertise as they relate to the case. Additionally, you must have a complete grasp of materials, pleadings, interrogatories, documents, depositions of other witnesses, and any other material supplied by the attorney.
If you have a good reason for not being able to show up at the deposition, you need to contact your attorney to reschedule. This can be done if you are ill, in another concurrent legal proceeding, called away on an emergency, or unavailable because of a very important unforeseen commitment. The deposition should have been scheduled at your convenience in the first place; changing it is usually not difficult if not done at the last minute or under a tight discovery deadline. The deposition can be harder than the trial. It is hard because you have no control over the questioning process and may only answer the questions asked. The opposing attorney is in control. Attorneys test your and their own theories during depositions as they explore alternative story lines in preparation for trial. Depositions allow them to test how well these theories work in order to determine which ones can be developed at trial. Attorneys might use your deposition to gather bits and pieces of testimony to prepare motions unrelated to your actual work.
It is important that you prepare yourself psychologically. You should understand the issues involved in the litigation and the strategies that your lawyer will employ to get you the best outcome. You should understand the role you are expected to play in the litigation process. Plan ahead and discuss with your lawyer the questions that will be asked in the deposition. You should know how to answer open ended questions the other side may ask you. The opposing attorney may set traps. You should avoid falling into such traps.
Never “volunteer” information. Use the number of words necessary to answer the question. If you need to elaborate, do so on a limited basis. Allow the examiner to extract additional information from you. Use “yes” or “no” answers when no elaboration is necessary. You are not in a deposition to lecture or show the breadth of your knowledge; you are there to be responsive to the questions and elaborate to the extent necessary to protect the record.
Take time to think before answering. Pause after each question, even if you think you don’t need to. You need to set the pace and control the timing of the process. Some attorneys like to control the pace of the deposition by using a rapid cadence and not allowing you to think before reacting. Do not let that happen. Conversely, do not take long pauses for no good reason.
Make sure you understand the question. If the question is not clear, too broad, or too complex, ask for a restatement or for further explanation. You can restate the question in your terms before answering.
Never guess at an answer. Never guess at a question or answer before the entire question has been asked. You know what you know. If you do not know the answer, there are several ways to respond. You can explicitly say you do not know the answer. You can indicate that you cannot recall at that moment, but when, in the course of the deposition, you recall the information, you can let them know. You can say the question demands further research and that you will get back to them after a break. Never, never speculate in a deposition.
Never lose your cool. The other side’s attorneys may test you by asking demeaning questions. Do not retaliate. Do not stand up and leave. Lawyers can be very good at provoking witnesses. Do not fall into that trap. Once they discover you are susceptible to emotional outbursts, they will have an advantage. Keep your emotions grounded and under control. Focus on what is being asked, rather than on how it is being asked.
Never loose your cool. The other side’s attorneys may test you by asking demeaning questions. Do not retaliate. Do not stand up and leave. Lawyers can be very good at provoking witnesses. Do not fall into that trap. Once they discover you are susceptible to emotional outbursts, they will have an advantage. Keep your emotions grounded and under control. Focus on what is being asked, rather than on how it is being asked.
Magna Utah Family Lawyer Free Consultation
When you need legal help in Magna Utah for a family law case, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with you with Legal Separation. Divorce. Child Custody. Child Support. Modifications. Temporary Orders. Family Law Mediation. Spousal Support. And Much More. We can help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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|Etymology: Kennecott Copper’s Magna Mill;
Latin word meaning “great” or “superior”
|First Settled (as Pleasant Green)||1868|
|Given Township Status||2001|
|Incorporated as a Metro Township||2017|
|• Municipal Administrator||Greg Shulz|
|• Total||37.48 sq mi (97.07 km2)|
|• Land||15.11 sq mi (39.13 km2)|
|• Water||22.37 sq mi (57.94 km2)|
||4,278 ft (1,304 m)|
| • Estimate
|• Density||1,783.88/sq mi (688.78/km2)|
|Time zone||UTC-7 (Mountain (MST))|
|• Summer (DST)||UTC-6 (MDT)|
|Area code(s)||385, 801|
|GNIS feature ID||1430037|
Magna (/ˈmæɡnə/ MAG-nə) is a metro township in Salt Lake County, Utah, United States. The current population of the township stands at 27,029 according to the 2020 census, a moderate increase over 22,770 in 2000.