What Is Discovery?
If everything goes to pot and you find yourself in the middle of a big, fat lawsuit, once it’s been filed the court will usually issue what’s called a scheduling order that lays out the different deadlines in the case. This includes a date by which all “discovery” must be completed. This doesn’t mean that you need to set off in a ship to discover new, uncharted territory - although by this time, you may want to. Think of discovery as a toolbox full of tools that are used to discover facts relevant to the claims and defenses in the case. The parties to a lawsuit engage in discovery so that they can be properly prepared for trial, and avoid surprises that can really hurt them in a case; nothing is worse than being surprised at a trial by something you should have known beforehand. Here’s a brief look at the different kinds of discovery and some of the problems and issues that come up in discovery.
Written Discovery
First, the parties are permitted to discover relevant facts through three main types of written discovery: Interrogatories, Requests for Production of Documents, and Requests for Admissions. Interrogatories are simply written questions that must be answered in writing and under oath. There are all kinds of complicated rules about these questions, but you should know most questions are okay to ask, even if you think that it’s none of the other party’s business. The limits of discovery are broad, and if there is any relevance at all, even if it seems totally goofy, it’s probably proper to ask the question. The same goes for the next type of written discovery, Requests for Production of Documents. These requests are a big pain in the neck, and require a party to dig back through the mists of time and produce reams of specified documents for inspection and copying. It is essentially a request for documentation on issues that are relevant to the case. Lastly, Requests for Admissions seek to have a party admit the truthfulness of a statement of fact, so that proof of that fact will not be necessary at trial.
Divorcing Client: “What do you mean I have to dig up copies of my credit card statements that show my charges since I separated from my husband? That’s none of his business!”
Lawyer: “Aren’t you asking for spousal maintenance? Isn’t one of your reasons in asking for it so that you can pay your credit cards? That makes it relevant.”
Client: “Yeah, but - he’s a jerk!”
Lawyer: “Sadly, that’s not a legal defense.”
Client: “Who’s side are you on, anyway?”
Lawyer, to himself: “I should have been a farmer.”
Oral Discovery
In addition written discovery, parties are also permitted to take depositions of persons who may have knowledge of relevant facts. A deposition are question asked in front of a court reporter, and the person being deposed must give sworn testimony that may be used at trial. A deposition is generally a question-and-answer session similar to what occurs with witnesses at trial, except that there is no judge present, and it happens at a lawyer’s office. The lawyers ask questions of the opposing side and their witnesses to pin down their testimony so they know what they will say at trial.
Sadly, some lawyers also use depositions to try and show how smart they are and waste everybody’s time with a bunch of background or other marginally relevant questions that go on forever until you wish you were having a root canal instead of sitting in a deposition. The lawyer whose client or witnesses are being asked questions will then try to show how smart he/she is by often objecting to questions he or she thinks are somehow deficient because they violate some court rule. The court rules governing depositions require that most objections be made at the time of the deposition so that they are preserved in case a court ruling becomes necessary later on. This doesn’t mean that the deponent doesn’t answer the question., it just means that the objection is preserved so that if the question comes up at trial, the judge can then rule on the objection and whether or not the question has to be answered and admitted into evidence at trial.
In deposition:
Lawyer: “Mr. Witness, isn’t it true that Mr. Lushy was intoxicated when you saw him rear-end Snow White at the stop sign?”
Other Lawyer: “Objection. Lack of foundation. This witness is not a doctor, an expert on intoxication, or a human Breathalyzer. There’s no way he can accurately answer that question. Now, go ahead and answer.”
Deponent/Witness: “He was as drunk as a skunk. He was slurring his words, smelled like a distillery, was singing “How Dry I Am” at the top of his lungs, and then lay down and fell asleep in the bike lane. Yeah, he was drunk, alright.”
Later, at trial:
Lawyer: “Mr. Witness, didn’t you say at deposition that Mr. Lushy was intoxicated at the time of the accident?”
Other Lawyer: “Objection, your honor! There was an objection for lack of foundation when that question was asked at the deposition.”
Judge, after hearing a bunch of argument from the lawyers, and reading the deposition transcript : “Unless this witness is a doctor, an expert on intoxication, or a human Breathalyzer, there’s no way he can accurately answer that question. Objection sustained. Mr. Witness, don’t answer.”
Lawyer: “Okay, fine. So, Mr. Witness, what did you observe at the scene of the wreck?”
Deponent/Witness: “He was slurring his words, smelled like a distillery, was singing “How Dry I Am” at the top of his lungs, and then lay down and fell asleep in the bike lane. But since I’m not an expert, I don’t know if he was legally intoxicated.”
See how that works? The problem in that question wasn’t the witness’s observation, but the conclusion that Mr. Lushy was intoxicated by a witness who wasn’t qualified to make that judgment. Mr. Lushy may have actually had a very rare neurological condition combined with narcolepsy that made him smell and act drunk and then fall asleep, as could have been brought out later in trial by a medical expert. The objection was preserved in deposition so that the court could rule later.
It is also not uncommon for problems to arise between the parties over particular discovery requests. Sometimes a party will argue that a certain question is irrelevant, vague or overbroad; other questions can be said to invade one’s privacy or a privileged relationship (e.g., attorney-client, physician-patient), and still other questions might have arguably been asked for improper purposes, such as harassment.
Physical and Mental Examinations
When a party’s physical or mental condition is at issue, the opposing party can ask the court for an order requiring that party to undergo a physical or mental examination. For example, in a personal injury case, the insurance company of the person at fault may require the injured person to attend an “Independent Medical Examination,” or IME. The examining physician is typically asked to prepare a detailed written report setting out his/her findings, test results, diagnosis and conclusions. These exams are fraught with peril, and are generally performed by the same doctors that the insurance company uses (and pays) routinely. Color us skeptical as to whether or not these medical exams are always “independent.”
When the parties are unable to resolve a discovery dispute themselves, the court may be asked to intervene and resolve it for them via a motion to compel discovery. Courts don’t like these kinds of motion; judges expect the parties and their lawyers to play nice, get along, and resolve the matter on their own, and will often assess costs and attorney’s fees if a party or attorney is just being difficult for no reason.
Forming a Discovery Strategy
At the very beginning of a case, a good attorney will come up with a discovery strategy that is geared toward learning as much as possible about who the other side’s trial witnesses will be, what they will say in testimony, and what documents they will offer to support their claims.
Depending on the number of witnesses involved and where they are located, the discovery process can be quite costly and time-consuming, but it is essential to thorough and competent trial preparation that the attorney and client have a discovery strategy that fully informs them about the facts of the case and minimizes the chance that they will learn something for the first time at trial, which is pretty close to the worse thing that could happen in a case.
