June 14, 2021
Trial lawyers often use distinct language to describe their legal activities. One such term, “discovery,” deserves some explanation since it is involved in every civil dispute. A lawsuit begins with the filing of a complaint. Once the complaint is answered by the defendant, the parties engage in discovery. Discovery is the process by which the parties exchange information and conduct their investigation into the facts of a case. Often, discovery requires the parties to commit to a position in the litigation that will remain their position at trial. Discovery also allows the lawyers to determine the strengths and weaknesses of their case. Frequently, after lawyers learn their strengths and weaknesses throughout a case, the parties are able to resolve their differences through settlement.
The process of discovery is governed by the rules of civil procedure. Each state has its own set of rules of procedure. In addition, there are Federal Rules of Civil Procedure. Generally, all of the states’ rules are similar and follow the pattern of the Federal Rules of Civil Procedure. These rules have been tested over time. In addition, every law school requires students to study civil procedure.
Generally, the purpose behind discovery is so that litigants will share information with one another in an effort to determine the merits of a given dispute. The litigants hoped to avoid “trial by ambush,” or surprises at trial that the lawyers are not prepared to address. In some states, the parties are required to voluntarily disclose important information to their opponent. In other states, pattern discovery is used to direct the litigants to acceptable and uniform exchanges of information.
There are a number of techniques that can be used in discovery. First, written interrogatories are questions that are used to identify witnesses, documents and other tangible evidence. Requests for production of documents are used to obtain copies of documents and other materials from an opposing party that might be used as exhibits at trial. Discovery rules also permit a site inspection so that a litigant can enter a property for purposes of inspecting and photographing the site of an accident or injury. The civil rules also provide for requests for admissions which allow a lawyer to force an opponent to admit or deny a specific fact relevant to the litigation.
In addition to these various modes of discovery, the most important discovery technique is the deposition. A deposition is a formal interview under oath. Lawyers have the opportunity to ask any party and any witness questions relevant to the litigation. The interview is recorded, usually by a court reporter stenographically or by videotape. Statements made in the deposition, because they are sworn, have a particularly strong impact on the litigation by forcing litigants to keep their story straight or face cross-examination for providing inconsistent testimony at trial.
Trial lawyers are skilled in the use of discovery to uncover favorable facts for their case. The discovery process often leads parties and their attorneys to reassess the strength of their case, frequently resulting in settlement through compromise prior to trial.