When a lawsuit is filed, the work for the trial begins well before entering a courtroom, and the most important part of this pre-trial work is the legal discovery process. Discovery is the formal process of exchanging information between the parties about the witnesses and evidence that will be presented at trial. During this process, each side will be gathering information, requesting answers, and providing responses of their own. The rules of discovery begin at Rule 26 of the Federal Rules of Civil Procedure (Title V. Disclosures and Discovery).
What is the Purpose of Legal Discovery?
The legal discovery process allows each party to learn what evidence may be presented during the trial before the trial begins. Sharing information on both sides prevents one side from withholding evidence or witnesses until the trial and creating a “trial by ambush” where the responding side is not given the chance to develop answering evidence. Another intention of the discovery process, aimed to prevent a less malicious situation, is to allow the trial to continue uninterrupted by each side requesting information from the other. This would hold up the process and drag the trial out longer than necessary without good reason. Some of the most common forms of discovery include:
Taking a deposition is one of the most common forms of discovery. Depositions, or “depos,” are statements given under oath by participants involved in a case while outside of court. These can be made by written transcript and/or video and are used both in preparation for trial and frequently during the trial itself. During oral depositions, both sides have the right to be present.
Depositions allow both sides to know what a witness will say in court. It gives them the chance to build a defense or discredit the opposing side’s witness testimony should the witness waiver while testifying in court. Frequently, depositions are used for witnesses unable to appear in court, being read aloud and entered into evidence.
Most frequently, depositions will involve an oral examination followed by a cross-examination done by the opposing side. When giving a deposition, it is of utmost importance to give only the facts, no opinions or speculations. Also, when being questioned by the opposition, answer only the question asked and do not provide additional information beyond that.
Request for Production (RFP)
A request for production is the most common way used to get documents for a lawsuit. A request for production is a written request from one party to the other requiring a person to produce physical evidence. These documents may exist as physical papers but could also be electronic files. When seeking a request for production, it is important to be clear what you want produced or the opposing side may object on grounds of the request being too broad in definition.
In addition to requesting evidence, an RFP can be used to inspect physical property. This may include an expert examining the object or property under dispute, such as an electrician being brought in to examine electrical work being disputed.
If a request for production is ignored or not fulfilled within the court schedule, the court will issue a subpoena duces tecum literally demanding the party bring forth the requested materials to court or be held in contempt.
Request for Admission (RFA)
A request for admission, also known as a request to admit, is a written statement used to establish basic facts and avoid having to establish them in trial. It is not used to seek an admission of guilt but to have both parties acknowledge and agree to certain facts ahead of time. These can be such things as ownership of a vehicle involved in a car accident, legal names, addresses, etc. An RFA also serves to establish the authenticity of documents under oath.
Interrogatories (also known as “interogs”) are lists of written questions submitted to the other party to be answered in writing and under oath. These answers are required within 30 days of being served the interrogatory unless otherwise adjusted under Rule 29 of the Federal Rules of Civil Procedure or by court order. The overall usefulness of interrogatories as a method of discovery is low. The answers provided are typically carefully constructed by lawyers and end up saying very little.
There are less formal ways to gather information as well. Examples of such methods might include taking photographs of accident sites or damaged property, researching the opposing side, or collecting documentation from third parties to back your claims.
The legal discovery process is an incredibly important piece to the puzzle that starts well before the trial takes place. A few final reminders about discovery:
- Discovery is a thorough undertaking, and everything will likely come out at some point during the process.
- It can be lengthy and expensive.
- Always provide honest answers, however brief, during discovery. Lying will undoubtedly be caught and jeopardize the case and find you guilty of perjury.
- Do not be afraid to answer “I don’t know.” Providing speculation or assumption is never a good thing.