12.2.3 Investigation and Discovery

Lawyers representing survivors in protective order cases must not only conduct quick, focused investigations, they must quickly decide when to edit evidence and testimony that detracts from the client’s “core story” and fails to support the case theme.

Quickly determine what, if any, witness testimony to present in addition to the client’s testimony. Even within a shortened time frame, each witness should be prepared for court by running through the direct, preparing for cross, and explaining the process of objections.

In most jurisdictions, it is not customary to conduct formal discovery in protective order proceedings, even though it may be possible. Sometimes there is insufficient time to conduct written discovery, but sufficient time to notice a deposition. Consider opportunities to conduct formal discovery before a protective order hearing. When a defendant fails to respond, it may justify a continuance that includes maintaining the TRO in place while you obtain (and, if necessary, compel) discovery. Discovery is valuable in any case to help you prepare for the defendant’s version of events, but in a case involving child or spousal support, it can ensure that you can produce the best evidence of the other party’s income and ability to pay.

Once you examine your discovery options within the time frame set by the rules of civil procedure,1  make a case plan that establishes what you need to prove, and whether the sources of proof will require that you obtain them through interrogatories, requests for production, requests to admit, depositions, or subpoena.

Many domestic violence perpetrators manipulate the legal system. Do not rely on the abusive party to respond honestly or timely to discovery. Whenever possible, try to get the information directly from a third party, e.g., employer, hospital, day care center, Internal Revenue Service, etc. Approach depositions with caution, and carefully explore safety considerations for both you and your client. Arrange for depositions to take place in a secure setting, such as a courthouse with metal detectors and security, and do not allow the abusive party to be alone with your client.

• 1See La. C.C.P. arts. 1421 (General Discovery), 1457­–1458 (Interrogatories), 1461–1463 (Production of Documents), 1466–1468 (Admissions), 1437–1439 (Depositions).