Attorney Christopher A. Pearsall

Presumably a subpoena holds just as much power in the Rhode Island Family Court as it does in the Rhode Island Superior Court.  However after eight (8) years in practice I have learned that there are differences in the power of a subpoena in the Family Court system.

First, however, let me be clear that the difference in the amount of power a subpoena has or may appear to have in any given legal proceeding has nothing to do with the Rhode Island General Laws or the Rhode Island Procedural rules for Superior Court or Domestic Relations matters.

That being said, the power of the subpoena is diminished because of the weight it is given in each of these forums. 

In the Rhode Island Superior Court the superior court judges appear to give more weight and seriousness to subpoenas than those judges in the Rhode Island Family Court System.  By and large the vast majority of subpoenas that I have seen issued in the Rhode Island Superior Court were taken seriously and enforced by the judge presiding over the case.

In Rhode Island Family Court cases, however, subpoenas and subpoenas duces tecum are treated lightly and have readily become the targets of Motions to Quash, despite the fact that the information requested is reasonable, relevant and even necessary to the case of the issuer.

What litigants should perhaps be most aware of is that the Family Court Justice may take little or no action against a party who has been subpoenaed to court to bring documents, particularly banks, financial establishments, and professionals who may be considered experts.

The moral of this article is that the subpoena is often seen by clients as a "sure thing" to get the information they need to prove their case.  In Family Court it most certainly is NOT a sure thing. Keep this in mind if your own attorney is stonewalled either by the court or the opposing counsel.  Even though there are procedural and statutory provisions governing subpoenas and their consequences, your attorney is limited to being your advocate.  Once your attorney advocates for your position regarding the subpoena issued on your behalf, he or she thereafter may remain powerless.

In the end, a subpoena's enforcement falls upon the justice who sits upon the bench.  If the Justice fails or refuses to enforce the subpoena, your attorney is powerless to do anything further other than to protect your interests for appeal.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)

For those going through a divorce who already have a Rhode Island Divorce Lawyer, this may be something you have come across.  It is called "template discovery".  It is not a practice that I participate in.  Some divorce lawyers will justify the practice by stating that template discovery is necessary to prevent a claim by the client of legal malpractice on their part.  I completely disagree.

I am, however, getting ahead of myself.  It is best that I explain what "template discovery" is.

During the course of any litigation process, including divorces and separations, their are certain procedural rules that allow for methods to be used to "discover" the other party's position, asset, etc.  These methods are best referred to as "legal tools" that are afforded to litigants and their attorneys.

One such tool is called "Interrogatories".  These are simply questions that must be answered under oath or objected to by the person to whom they have been sent within forty (40) days of the date they were sent. The date they were sent is known as the date of certification and it is contained in a formal "Certification" clause at the bottom of the interrogatories and other forms of discovery.  Interrogatories are limited to thirty (30) in number unless a party obtains permission of the Rhode Island Family Court.

Another such discovery tool is called a Request for Production of Documents and Other Things.  This is a document prepared and sent to an opposing party for him or her to produce documents and other relevant things for inspection within twenty (20) days of the date the request was sent as set forth in the "Certification" or to object to the production based upon a legal basis or privilege.  Requests for Production of Documents are unlimited in number and may be sent in numerous sets.  Although the Rhode Island Domestic Relations Rules of Procedure required only that you produce the documents and other things for copying and inspection (presumably at the opposing party's expense), litigants typically produce copies of the documents and other things to the extent possible and mail their to the opposing party to their divorce attorney.

Another discovery tool provided by Rule 36 of the Rhode Island Rules of Domestic Relations Procedure is called a Request for Admissions.  In this document a divorce litigant is ask to admit either the truthfulness of a particular statement or the genuineness or authenticity of a particular document.  Litigants who receive a Request for Admissions have only ten (10) days from the date of Certification on the document to object to the request based upon a legal ground or privilege and only twenty (20) days to file their formal response to the requests that are not properly objected to.  Failure to file the objections in a timely fashion, and failure to file a response within the (20) days is considered a waiver of objection and the genuineness of documents and statements are deemed admitted.

Depositions are also a discovery tool that may be used in the Rhode Island Family Court but permission of the court must first be obtained before a deposition may be taken and depositions are not pertinent to this article.

Now that you understand a bit more about the discovery tools available in a Rhode Island Divorce proceeding you will better be able to understand the concept of "template discovery".

Template discovery is usually reserved to Interrogatories and Requests for Production of Documents.  In essence the divorce attorney has created a set of Interrogatories and/or Request for Production of Documents as a "template".  In other words, the Interrogatories and/or Request for Production of Documents contain every question and every request that the attorney might want to ask in ANY divorce case.  Now a portion of the Interrogatories and the Requests for Production might well relate to your case.  In fact it is possible that that all might relate to your case.  However, these are templates that were created months or even years ago to be used over and over again.  Generally they are given to a secretary the caption is changed to put the name of you and your spouse, the Docket number is changed and the date of Certification is filled in differently.

Now, I must admit that as a divorce attorney this is economical.  You have one set of each document and you send it out in every case.  It saves enormous time for the attorney.  Yet here is the kicker.  If each of those documents took 2 hours to create, even if it was 10 years ago, you'll find in some cases that you as the client are charged 4 hours for these Interrogatories and Request for Production of Documents.  Do you find that fair?  I certainly don't. 

Take a look at the Interrogatories and Request for Production of documents that were sent to your spouse by your attorney.  Do they relate specifically and ONLY to your divorce issues or do they ask for a bunch of things that don't relate to your situation at all?  If they don't, call you divorce attorneys and get your bill.  How much were you charged for "preparing' those documents?  If you see several hours of time on your bill and the discovery isn't specific to your case, you've been a victim of "template discovery" a method used by some divorce attorneys to make extra money without doing the work.

Divorce is hard enough without your own attorney taking advantage of you.  In closing, there is one more thing you may want to consider. Did your divorce attorney ask your permission before sending out this discovery?

If you've been taken advantage of in the manner described above, ask yourself, don't I deserve better?

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)