What's to discover?

Happy Friday!

If you are a fan of John Grisham novels or tv shows like Law and Order that involve "courtroom drama," I am about to burst your bubble. Nothing that ever happens at trial is ever that exciting. Yes, lawyers have war stories (and will gladly bore you to death with them with the slightest provocation), but they do not involve the Perry Mason moments of witnesses breaking down on the stand and confessing to the crime, shocking revelations or surprise witnesses. Why? Because, believe it or not, we do not seek to permit trial by ambush in this country.

How do we avoid this? In the civil arena (in case you hadn't noticed by now, things work a little differently in the criminal court system), we have a phase of the proceedings known as "discovery." It usually follows right after we're done with the pleading phase - and you've already heard about that from me.

Discovery involves 6 or so vehicles to gather information from your adversary and those who are not parties to your lawsuit who have relevant information. What do you get to discover? Anything related to the issues you are in dispute over - and by related I am referring to a very broad scope of information. This is the phase of litigation that clients seem to like the least because it can be very invasive. If appropriate, medical records, financial statements or e-mail can all be the subject of a discovery request and turned over to your adversary.

The array of discovery tools is broad. You can ask for the production of documents, you can serve written questions that have to be answered and notarized (so that they constitute testimony), you can propound written statements and have your adversary admit or deny them. Additionally, you can require your adversary (and he or she can compel you) to appear to testify under oath in the presence of a court reporter who will transcribe the testimony. You also have the ability to compel those who are not parties to the lawsuit to produce documents and appear to testify (subpoena). Lastly, you have an obligation to turnover certain types of information without being asked at different stages of the proceeding because the Court requires it.

Lawyers can be very thorough in their discovery and some can be overly invasive. Most of the money spent in litigation is in the discovery phase and most of the disputes that arise between attorneys relates to what should or should not be turned over to the adversary. The idea, though, is to obtain all the information in your opponent's possession that could bear upon the issues or outcome pending in your lawsuit. By doing this, you have avoided the trial by ambush and the Perry Mason "aha!" moment.