Monday, 11 July 2016

Discovery Informal And One Formal Discovery Device

Soon after the lawsuit papers are served the parties can engage in discovery. This phase of the litigation process lasts until basically thirty days before trial. The point of it is to develop and obtain evidence to support your claims and see what the others side has to support their claims. This is important so that you can win your case and evaluate your chances at success. And you need to evaluate the chances of success for the other side. This information can lead to a resolution of the case.

Before even filing a case, however, it is important to do informal investigation of the case. Your own files and records may have important documents to support your case and evaluate what issues the other side may try to raise. Go through your files. Pull together the contracts, agreements, and other supporting documents. Get the email and other communications together. The correspondence trail may be full of admission, for both sides. There may be smoking guns anywhere. This information must be gathered and preserved.

Witnesses can be identified and located. Investigators can obtain statements to preserve testimony and avoid later surprises. Maybe people on the other side will speak more freely before the court process begins.

Once the case begins the discovery process is more formal. There are various tools used to pursue formal discovery. These consist of written questions, requests for documents or to inspect places or things, requests for admissions that the other side admit or deny various propositions, live questioning of witnesses under oath with a formal record (depositions), and securing documents or testimony of or from third party witnesses. Closer to trial there is a process for exchanging information on experts who may testify to support each side.

Let’s look at the first on the list: interrogatories.

These are typically written by the lawyer for the asking party and answered by the lawyer on the other side. However the party answering the questions has to swear to the truth of the answers. So whatever information you get out of them can be used against them in court as an admission. It can also be used against them to attack their credibility if they change their story.

As you might imagine the side answering the questions will try to object to questions and provide as little information as possible, at least with respect to things they would prefer not to discuss. For the self-serving subjects, expect longer answers.

Once the questions are answered the asking party can press for better answers or try to overcome objections. This is first done informally through a meet-and-confer process. Basically it is a negotiation between the attorneys regarding what the rules and obligations are and how the standards were not met or the questions were hopelessly confusing or otherwise defective. The meet and confer process can lead to better and more information. It can narrow the issues where some common understanding is met. And for those areas where the parties cannot work it out the parties can tell it to the judge for a decision. There can be a financial penalty for being wrong. Typically the losing side has to pay the expenses of the winning side for the motion to bring the matter to the court’s attention. This could be anywhere from hundreds to thousands of dollars, depending on what is involved. And the court can review the request for attorney’s fees and reduce it if they feel it is excessive. If there is a close question and/or abundant good faith a court may not impose sanctions. Much depends on the judge hearing the discovery dispute. Typically some sanctions are imposed.

And, of course, pursuing a discovery motion can take a lot of time because of what must be prepared to properly present it to the court.

But without information you may not be able to prove your case. So this can be a mission critical process.

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