Discovery is one of the most important aspects of a civil case. It is often overlooked by self-represented litigants, or its importance is not well understood, so it is worth taking a deeper look at it.
A civil case is normally started when one side or the other files a complaint with the clerk of courts. This is followed up by having the defendant(s) served with a copy of the complaint and an order from the court directing them to answer (this is called a summons). After those formalities, the case usually enters a phase called discovery, during which both sides use various legal tools to learn about the strength of the other party’s case, and strategically to gain an advantage over the other party.
There are a number of possible tools or methods that can be used. Parties can usually send a limited number of interrogatories, or questions, for the other side to answer. These would usually include asking for their version of the facts, a list of any witnesses they may seek to offer, and an itemization of any economic loss or calculations. One key is that any witness not listed in response to interrogatories may not be able to testify at trial. Further, if a party testifies at trial differently than they answered their interrogatories this can be useful for impeaching them on cross-examination.
Another form of discovery is a request for production of documents. An RFPD is a means of forcing your opponent to disclose documents in his or her possession, as well as a means to limit the proof at trial. Again, if a party fails to disclose documents in response to an RFPD the court might refuse to allow him or her to enter the document into evidence at the trial. For this reason, it is normally a good idea to ask the other side to produce any document they intend to introduce at the hearing. If they stonewall in discovery, it may come back to haunt them later.
A third form of discovery is a request for admissions. Although not used as often as interrogatories or an RFPD, requests for admissions can be useful in forcing your opponent to admit to the authenticity of documents or tangible evidence. In most jurisdictions, if a party fails to respond within a certain time period to requests for admissions, they are deemed admitted automatically.
Perhaps the most interesting and useful form of discovery is the deposition. A deposition is where a party (or witness) is called to a conference room where a court reporter is present and asked questions while being recorded and under oath. The transcript of the deposition can be introduced at the trial. It is useful in pinning down an opponent to a particular position, learning how they are going to testify (sneak preview of the trial), and seeing how the witness responds to various forms of questions. Most witnesses open up after a while and converse freely with their questioner. It is often the best way to learn about an opponent’s case.
A skilled business lawyer Rockville, MD residents count on will likely tell you that although there are other methods of discovery, these are some of the most common techniques. Over the years, most trial attorneys have found that pursuing discovery aggressively is a sound, if often overlooked, trial strategy.>