DISCOVERY – The Process
So that each party in litigation is prepared to try their case, the courts have rules as to what is permitted within the process. The rules are very specific and if they are not performed properly, the case can be harmed.
Most circuit court cases have scheduling orders with deadlines outlined in them and if, for example, you don’t meet the discovery deadline (a specific date), you will likely not be able to introduce at trial the information that you would have provided to the opposing party had you met the discovery deadline. That is why the attorney and client must work together in meeting those deadlines.
There are many discovery tools including but not limited to:
- (1) Interrogatories;
- (2) Requests for production of documents;
- (3) Requests for genuineness of facts or of documents; and
- (4) Depositions
Interrogatories are written questions that the opposing party must answer under oath. The answers to the interrogatories must address what is asked. Failure to fully and completely answer a question could result in your not being able to introduce the evidence at trial or could lead to sanctions against you, including attorney’s fees and/or a default judgment. The Rules limit each party to asking only thirty questions however there are standard discovery interrogatories that, when used for most legal topics such as automobile accidents and family law matters, exceed thirty questions when counting sub-questions, thus enabling each party to ask more questions because of the subparts.
A Request for Production, Inspection and Copying of Documents is a very useful discovery tool because it enables each party to receive enormous information. There is no limit to the number of requests that can be made for the production of documents. In family law cases where an evaluation of assets (marital property) is needed, the production of documents such as deeds to real property, bank statements, pay stubs, pension statements and statements of IRAs can be extremely helpful in completing the evaluation. For automobile accident cases, the plaintiff may seek the title and registration information of the defendant’s vehicle, the insurance policy covering the defendant’s vehicle in order to determine the policy limits (how much insurance the defendant has) and whether there may be an umbrella policy that exceeds the limits of the defendant’s automobile liability policy. The defendant will likely require the plaintiff to produce documents showing damages including medical treatment records, medical bills, documentation of loss of income (lost wages), pain and suffering, and future medical needs. The above document requests are a few examples of what typically is requested in this form of discovery.
A deposition enables the attorney to cross-examine the opposing party and witnesses and to conduct either direct or cross-examination of an expert witness. Often the purpose of a deposition is to preserve evidence that will be presented at trial and that evidence may take the form of a video and/or written transcript. Preserving the testimony of a witness is important in the event the witness may not be available at trial or when it is too costly to bring a live medical expert to the trial. Through conducting a deposition, the attorney may also be able to evaluate how good of a witness is the witness or the opposing party. Another reason for deposing the other party is to catch the witness in an inconsistent statement against interest or, if the opposing party is lying about a fact or facts, the witness may not be able to remember what was previously stated. It is hard to be consistent with lies.
Discovery provides enormous benefits in preparing for trial and to your case in general. The more that you are perceived as being ready for trial, the greater is your chance to settle your case. The money spent in thoroughly conducting discovery may actually lead to a savings in overall cost if you are able to avoid the expenses of going to trial. Also, you may be able to settle your case for a higher amount because the discovery you obtained through your attorney provided you with a better and stronger position than if you had not conducted the discovery. Conducting thorough, complete, and timely discovery helps your case greatly.
Fred Antenberg has over thirty years’ experience in preparing for trial in Howard County and surrounding counties near Baltimore and in Central Maryland and has successful experience in utilizing the tools of discovery. Call Fred for a FREE INITIAL CONSULTATION – 410-730-4404.