Show Them Yours By Aaron D. Bundy & M. Shane Henry
Evidence in the possession of our clients should be prepared for early disclosure to the other side. This principle is both expressed and implied throughout the rules of civil procedure and evidence. The federal rules of civil procedure require specific initial disclosures to be made without the request of the other party.1 Oklahoma’s civil discovery rule has a similar requirement.2 In divorce cases, each party must make financial disclosures to the other without awaiting a request from the other side for the information.3 To receive the benefit of the “business records” hearsay exception, we are required to disclose the record in advance to the opposing party.4 However, these disclosure rules are too often overlooked or ignored, despite the many potential benefits of “showing them yours” early on.
Fed. R. Civ. P. 26
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Okla. Stat. tit. 12 § 3226(A)(2)
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3
Okla. Stat. tit. 43 § 110
Okla. Stat. tit. 12 § 2803(6) and Okla. Stat. tit. 12 § 2902(11)(b)
4
Before we ever file a lawsuit, or as soon as we get into one that is already pending, we identify the evidence that will prove our client’s case. Each piece of evidence is evaluated for its value and for its potential issues, including relevance, reliability and hearsay. Evidence that our client possesses or knows about will ultimately be available to the other side. The discovery and evidence codes were established to avoid surprises. Our discovery code says, “Parties may obtain discovery regarding any matter that is relevant to any party's claim or defense . . .”5 The Oklahoma Court of Civil Appeals emphasized this concept in State ex rel. Prot. Health Services v. Bfc, 158 P.3d 484, 489, 2007 OK CIV APP 24, ¶ 17: Civil trials no longer are to be conducted in the dark. Discovery, consistent with recognized privileges, provides for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir.1978). "The aim of these liberal discovery rules is to `make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Id. Voluntarily disclosure sets the tone for the entire case. Opposing counsel quickly realizes that your client is moving the case forward and not playing games. Often opposing counsel will reciprocate. The transparent attitude then bleeds over into settlement discussions which can lead to agreements and resolution of the case. Early disclosures that facilitate quick resolution obviously save each side the expense of time, money and risk associated with drawn-out litigation and trial. Since the discovery code virtually assures that the evidence will be revealed at some point anyway, disclosures help avoid the costly penalties associated with
5
Okla. Stat. tit. 12 § 3226(A)(1)