Definition: Discovery

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Modified on 2009/10/14 21:50 by admin
Once the pleadings (complaint, answer, counter-claim, etc.) have been filed by the Plaintiff and Defendant, the parties will begin the discovery process. During discovery, the Plaintiff and Defendant may use several methods to find out, i.e., "discover," as much pertinent evidence and information regarding the opposition's case as possible. Some techniques include:

1. Deposition - The deposition is similar to a question and answer session. Depositions do not take place in the courtroom but usually are held in either the Defendant's or Plaintiff's attorney's law office. The attorneys ask questions of witnesses in an effort to determine what those witnesses will tell the judge or jury during the trial. The attorney then uses the information learned during the deposition to prepare for the actual trial.

2. Interrogatories - The interrogatory is similar to the deposition except that instead of posing the questions directly to the opposition's witness in a face-to-face setting, the questions are sent to the witness in written form to be answered accordingly.

3. Request for Admission - With the request for admission one party asks the other party to admit or deny certain facts. The information learned through this discovery technique allows the trial to proceed more efficiently as the parties can determine beforehand which issues they agree upon and which issues they do not. That is, the more the parties admit, the less will remain for the judge or jury to decide.

4. Request for Production of Documents - Both parties may seek relevant documents, files, photographs, video or audio tapes, etc. that are in the possession of the opposition.

In order to assist your lawyer during the discovery phase, it may be helpful to do all or some of the following:

1. Review all of the pleadings filed to date. By doing so, you may recognize the importance of certain evidence that your lawyer may not fully appreciate. That is, since you are more familiar with the incident, your first hand input is of invaluable assistance to your lawyer. Also, should you find any inaccuracies in the Defendant's claims, inform your lawyer immediately so that he may fully prepare to exploit such at trial.

2. Make certain that the information you have previously supplied to your lawyer is complete and accurate. Often, with the passage of time, you may realize other important facts which did not initially appear important. Also, perhaps some of the information you have supplied to your lawyer has changed since the initial meeting. Be sure to keep your lawyer up to date regarding any changes.

3. The Defendant's lawyer will likely request that you answer written interrogatoriesand respond to depositions regarding the facts and circumstances surrounding the incident. Be mindful to answer these questions as accurately and truthfully as possible. Your preparation for your deposition is critically important. Not only will the substance of your responses be recoded, but the Defendant's lawyer will evaluate your demeanor and "stage presence" in an attempt to gage your potential "popularity" and credibility with the judge and jury. Remember, the credibility of all witnesses is vitally important. If the judge or jurys decision comes down to a battle of your word versus the Defendants, your believability is paramount. If after responding to the interrogatories and / or depositions you realize that some of your answers may have been made in error, inform your lawyer so that he can act accordingly to correct any inconsistencies. This is very important as the Defendant's lawyer is likely to ask you the same questions during the trial in front of the judge and jury. If your responses during trial differ from those given in the written answer to the interrogatory or your verbal response to a question posed during a deposition, your credibility in the eyes of the judge and jury will be diminished. As is obvious at this point, you must thoroughly prepare for all depositions and interrogatories.

4. Be sure to provide all documents requested by the Defendant's attorney through the request for production. Again, it is important not to hold back potentially embarrassing or damaging documents from your lawyer. Chances are that the Defendants lawyer will find those compromising documents even without your help. There are few situations worse than the Defendants lawyer presenting you with such a document at trial and your lawyer has not prepared any response because you failed to tell him or her about it!

 

See Also

  1. What is a Lawsuit
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