When we last saw Tom and Henry, they were ready to start discovery in their lawsuit. Discovery has not been around that long. Seventy-five years ago we had something fondly remembered as trial by ambush. Neither party had to tell the other the facts supporting his claim or defense. One side found out what the other side had up its sleeve only after the trial began. Witnesses and documents showed up by surprise. Sometimes lawyers were caught flatfooted. At other times they managed to make lemonade out of lemons.
In the 1930's a group of lawyers and law professors decided this was no way to do justice. They also wanted to encourage adversaries to settle without expensive trials. Their solution was discovery. Each party could find out exactly what the other party was claiming, learn all the facts related to the dispute, examine all the paperwork, and talk to all the witnesses who might testify about what they had seen or heard.
Discovery comes in different flavors. Interrogatories are written questions sent to the other side, which must be answered within 30 days. They might ask things like, ‘Do you contend that the light was red when defendant rear-ended you?’ Or, “State all the facts supporting your contention that the light was red when defendant rear-ended you.” Requests for admission typically ask the other party to admit the truth of certain facts or the genuineness of certain documents. Requests for production typically ask for production of documents so they can be copied and studied carefully. Requests for examination might ask for physical inspection of a thing, like the brake system of a car that was in an accident.
Then there are depositions. In a deposition a lawyer sits down in a conference room with a party or a witness, in front of a court reporter, and asks questions. The questions are supposed to be reasonably calculated to lead to the discovery of evidence admissible at trial. Originally this was expected to limit the scope of the questions and prevent ‘fishing expeditions.’ It hasn’t worked out that way. Instead almost nothing is out of bounds, and depositions can go on interminably.
All the questions and answers are taken down by the court reporter. After it’s over, the court reporter transcribes everything and gives transcripts to the parties. The witness has 30 days to review the original transcript, make changes, and sign it. In a recital before his signature, the witness declares under penalty of perjury that his answers are truthful. Depositions give attorneys the opportunity to see how witnesses behave and to gauge their credibility prior to trial. They frequently provide useful information, and sometimes disclose the proverbial “smoking gun.”
Unfortunately discovery has not produced all the beneficial results its inventors hoped for. Frequently it is used as a means to wear down and bankrupt the other side than to produce a settlement or a shorter trial.
All discovery must be finished 30 days before the date set by the court for the beginning of the trial. In practice it should be finished much sooner. Lawyers use the results of discovery to decide what evidence to present at the trial, and how and when to present it.
Stanley D. Prowse is a Civil Litigation Attorney practicing in the greater San Diego area.