Have you seen any one of the popular legal dramas the TV networks have shown over the years? Such dramas put a whole new spin on the legal industry. Under the glamor and glitz of Hollywood writing, even the process of discovery can be an exciting adventure. But in reality, it’s pretty boring and routine.
Take discovery in a civil case involving debt collection. Imagine a company taking one of its customers to court for nonpayment. Let us say the customer is an individual rather than another business. In all likelihood, there will be two types of discovery in play: pretrial discovery and discovery in aid of execution.
Discovery in aid of execution sounds pretty exciting. It’s not. It is just as routine as pretrial discovery. In fact, it’s essentially the same type of thing except that it occurs after litigation.
More About Pretrial Discovery
After a lawsuit has been filed, but before the actual trial begins, attorneys for both sides engage in discovery. This is simply the process of ascertaining the facts of the case. In a debt collection case, the plaintiff’s attorney would likely look into the defendant’s financial position in order to demonstrate that he should pay the debt. The defendant’s attorney might look for information he could use in court to question the legitimacy of the debt.
Pretrial discovery is mostly about gathering the facts necessary for each side to present its case. Yet there may be some overlap with discovery in aid of execution, depending on the details of the case.
Discovery in Aid of Execution
Discovery in aid of execution takes place after the judge’s gavel falls and the decision is rendered. It’s a process of discovery utilized mainly by the winning party, also known as the judgment creditor, to learn more about the losing party’s (judgment debtor) assets. Note that the attorneys are no longer disputing the facts of the case. Those have been settled. Now it is about getting paid.
This particular form of discovery is so named because creditor attorneys need the information gleaned from it to execute collection efforts. In legal circles, collecting a money judgment is referred to as ‘execution’ or ‘enforcement’.
Some of the tools of discovery an attorney might rely on include:
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- Written Questions – Also known as interrogatories, the creditor’s attorney may send written questions to the debtor’s attorney. The questions must be answered truthfully, thoroughly, and in a reasonable amount of time. Questions can only pertain to the debtor’s assets and income.
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- Court Summons – Some states allow civil courts to issue summonses and even arrest warrants to compel uncooperative debtors to appear in court and answer questions about their assets. In addition, some states also allow subpoenaing third parties who may have relevant information on debtor assets.
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- Record Searches – Another form of discovery is the record search. Everything from property records to criminal records will be looked at for any information that could give a judgment creditor leverage to collect.
Judgment collectors is a Utah collection agency that specializes in money judgments. They explain that property records are a gold mine for judgment enforcement. Property can be used as leverage to convince judgment debtors to pay what they owe – or potentially risk their properties.
In a debt collection case, pretrial discovery is mostly about learning the facts of the case. Discovery in aid of execution is all about gathering information about incoming assets. Both types of discovery are necessary to bring a debt collection case to a successful conclusion. The right information can make all the difference in the world.
