Discovery: Strategy And Other Considerations

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Summary
The primary purposes of discovery: finding out, impeachment and preserving testimony. Think about conducting little or no formal discovery: you may not need numerous interrogatories, notices to produce or extensive depositions to prove your case.

Introduction
The key to successful lawyering is for the lawyer to control the direction of a case and not to yield that control to the client or the opposing counsel. It is important for the lawyer to be affirmative and not reactive. A case should never be allowed to take on a life of its own. If it does, then the attorney has lost control. An attorney should never lose sight of the fact that the purpose of the trial process is to get a result and to get it as quickly as possible.

Before initiating discovery — and before even bringing suit — you need to have a clear understanding of all the relevant facts of the case and the case objectives. You need to know the law and anticipate how you are going to prove the elements of the case. These are things that you should never stop thinking about throughout the course of the case.

The Three Primary Purposes Of Discovery

Keep in mind that there are three primary purposes of discovery:

(1) finding out what you don’t already know and need;
(2) impeachment or obtaining admissions – whether that be turning a witness, setting the standard of conduct or establishing safe parameters for cross examination; and
(3) preserving testimony (for example, an elderly or infirm client). Unless your intended discovery devices meet one of these stated purposes and there is a likelihood that you can accomplish that purpose, do not file them.

As a threshold point, you should think about conducting little or no formal discovery.

You may not need numerous interrogatories, notices to produce and extensive depositions to prove your case. There are a myriad of ways to obtain much of the information that you will need without any discovery from the opposition. Just because you have the right to discovery or just because most lawyers usually do full discovery does not mean you should always do it. The economic realities of the case cannot be overlooked. You are not doing your client any service by spending more on the case workup than is at issue in the case.

The Risks Of Unfocused Discovery

Obviously, limited discovery can be risky as well. You may surprise undeposed witnesses at trial, but they can surprise you too. There is no magic answer other than to make your discovery choices only after proper consideration.

Avoid unfocused form discovery. Unfocused discovery is symptomatic of the trial process gone wrong. It is too often used by lawyers as a vehicle to avoid identifying case objectives and focusing on the relevant case issues. Don’t do it. Although such tactics have become the norm in many cases, such discovery often results in:

(1) the expenditure of excess amounts of money without the associated return of information;
(2) unnecessary tension in the case — limiting the possibilities for settlement;
(3) the loss of judicial goodwill; and
(4) destroying your credibility. Such practice will also see the return of similar discovery in kind. This, in turn, will trigger a protracted discovery motion practice which many lawyers find quite consuming and important but which is the antithesis of practicing real law.

Justice Lipez, in a May 1989 Maine Bar Journal article, summed up the kind of image that a lawyer gives off when pointless and voluminous discovery is served:

The inordinate and on-going discovery demands of some attorneys reflect their fear of going to trial. In the guise of seeking all of the necessary information, they actually hope to avoid exposing themselves or their case to trial.

Once you understand your case objectives and have exhausted all informal discovery, you must then formulate a discovery plan and choose the appropriate discovery vehicle(s) for obtaining the information that you want. There is no right formula as to which devices should be used and in what order they should be propounded. Each case is different and must be considered independently. It is not necessary to use all forms of written discovery in order to feel like you have done the best job.

Methods Of Discovery

Interrogatories

Interrogatories are useful in that they are inexpensive and can be used to obtain technical and precise factual information such as identifying witnesses, locations and dates, obtaining expert witness information, learning of party admissions, and helping to provide a basis to better obtain documents or focus depositions. Interrogatories are generally not useful if worded to obtain long narrative responses.

Keep in mind that the lawyer will be answering. You may want to ask who, what, where and when, but not why. In light of the fact that Rule 33 permits only one set of interrogatories to be served (absent good cause shown) your interrogatories should be carefully developed. Depending upon the case, you may want to use them late in the case when the issues are better focused.

Document Requests

In many cases, a well-focused document request can be a very useful first foray into the other party’s case.As always, be creative and think of what you are trying to prove or defend.Your case may be one that does not require documents at trial at all. If this is the case, forget about a document request.

If, however, after investigation you determine that you will need documents or photographs not in your possession and not readily obtainable by other means, then you should carefully craft a specific set of document requests and serve them on your opponent. Hone in not on every document in your opponent’s file, but only on those documents you believe are directly relevant and central to winning at trial.

Request for Admissions

Perhaps the most overlooked yet powerful discovery tool is the Request for Admissions. It is a wonderful device for limiting the issues in the case. Requests for admissions are particularly helpful to establish easily and inexpensively such matters as ownership, employment status, or the application of particular contract provisions that may be at issue.

Historically such requests would be routinely denied. Many lawyers are reluctant to admit anything. Rule 36, however, has teeth and provides a vehicle to obtain sanctions if the propounding party has to undertake independent investigation or discovery to prove the substance of the propounded requests.

Depositions

Depositions are probably the most powerful discovery tool. Depositions, however, can be extremely expensive and are not always necessary or appropriate. Depositions should not be taken as a matter of course.

For example, if it involves a non-party witness, consider whether the witness will talk to you informally without having to have your opponent’s counsel present. Consider whether you will be preserving testimony harmful to your case from someone that may otherwise be unavailable at the time of trial. Also consider that by examining the witness you are always to some extent revealing what you believe to be your case strategy.

The very noticing of the deposition forces your opponent to learn his case. By taking the deposition you may be alerting your opponent to weaknesses in the case or to important witnesses that your opponent might not otherwise have discovered. Additionally, by taking the deposition you are providing the witness with a dress rehearsal.

This is particularly true with their experts. You may have just one shot with the witness and you will probably want to save it for trial.

In determining the timing of the depositions in the overall discovery plan, many lawyers prefer to take depositions only after extensive interrogatories and documents have been produced. This approach results in certain disadvantages. It allows the opponent to be better prepared because the opponent has answered interrogatories and collected documents. It also results in a delay giving the other side more time to deal with possible weaknesses. Therefore, in some cases, you should consider either doing limited written discovery followed by deposition or taking the deposition as a starting point for your discovery. Again, early surprise can be a powerful tool.

Know Your Case Before Responding To Discovery

Finally, it is important not to overlook the realities of responding to discovery. As a matter of general consideration, I cannot stress enough the importance of being thoroughly familiar with all aspects of your case before responding to the other side’s discovery requests. For example, don’t try to answer interrogatories until you have spoken with all witnesses that may have information relevant to the matters at issue. Do not try to respond to a document request until you have personally gone through each and every document in order to know exactly what you are providing to the other side and in order to preserve your right to object to any documents that may be protected.

Similarly, before you tender your client or a witness to a deposition, that witness must be fully prepared — not just with respect to the substance and factual matters in issue, but as to what to expect from the deposition process and how to answer and how to conduct themselves generally through the deposition process. Make sure that the deponent understands the theory of the case because only through understanding the theory of the case can she properly respond to the questions that will be put. Always give the witness or deponent a context. Do not assume that the witness, even a major party to the case, knows the contentions of the lawsuit or the important matters in issue.

Conclusion

Discovery is an important part of the trial process. We must not, however, lose sight of the fact that it is a means to an end and not an end unto itself.

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