The Discovery Process
The American legal system does not want the parties to litigation be taken by surprise. It is precisely for this reason that the federal court system requires the parties to litigation to disclose all documents and facts relating to the case to the other side. The disclosure must be done before trial. This requirement was introduced in the late 1940’s. Today, all state court systems have this requirement. The process through which the sides disclose documents and facts is known as discovery. Discovery can be completed through written discovery or interrogatories, production of documents and depositions.
Interrogatories are a common form of written discovery and are comprised of a series of written questions sent to the opposing party. Upon receipt, the receiving party has thirty days in which to respond or raise objection to any or all of the written questions received. Objections may be based upon grounds that reflect the burden on the answering party. The trial judge ultimately decides whether any of the objections are valid. Interrogatories are directed to the parties themselves. Responses must be in writing and signed by the party under oath. In addition to getting factual information about a party’s claims or defenses, interrogatories can be used to gain information about the scientific foundation of the opposing side’s case, including the identification of expert witnesses who will testify and the subject matter of their expected testimony. The questions can be generally or specific. Another common form of written discovery is the request for admission of facts. It consists of written requests presented by each party to the other. These ask that certain facts relevant to the issues in litigation be admitted or denied. These could be such things as dates, times, locales, etc. The purpose of this request is to have the opposing side admit certain facts that will then not have to be proven or contested at trial by separate evidence. If either party refuses to answer or provides incorrect answers, the court can impose penalties on such party.
Production of Documents
In the discovery process, any party may serve any other parties with a request for the production of documents which seeks all written material relevant to the specific subject of the litigation. As in the case of interrogatories, a party served with a request to produce documents has thirty days to respond by producing all of the documents requested, by notifying the requesting party of the arrangements made to produce all of the documents requested, or by filing a specific legal objection to part or all of the request.
Depositions are sworn testimonies given before trial by all potential witnesses, experts, and parties involved in the litigation. The purpose of the deposition process “is to gather information-not to try the case.” Although no judge is present, the witness is sworn by a court reporter to tell the truth, and a transcript of the testimony is prepared. There are two kinds of depositions: discovery and evidentiary. Discovery depositions are taken by the opposing party to learn what the witness has to say. Evidentiary depositions are taken to record and thereby preserve a witness’s testimony for use at trial. Evidentiary depositions are most often videotaped. The scope of questions at a deposition can be much broader than at trial. In a deposition, an opposing attorney may take greater risks in the questions posed-even knowing that an adverse answer may result in order to gain clearer insight into the opposing position and the relative strength of that position. Preparation for a deposition is different than preparation to testify at trial. To be most effective, you must know the difference. You must also be psychologically prepared. It is imperative that you understand the theme of the case, as well as the strategies to be employed by the attorneys and the part that the expert is expected to play. You may discuss ahead of time with the attorneys the type of questions to be asked in the deposition. Practice how to appropriately answer open-ended and “help me” questions without falling into the traps that opposing lawyers may set.
Points to keep in mind
- Discovery process will reveal everything at some point or the other.
- Don’t let your attorney be caught by surprise – Disclose everything to your attorney. This will enable your attorney to deal with anything the discovery process happens to reveal.
- Patience – You must be patient and calm. The process can take a long time and can reveal a lot about you. Don’t let this affect you.
- Honesty – It is better to be honest during the discovery process rather than give false information and get caught during trial.