One of the least understood aspects of litigation practice, by the non-attorney, is the process called “pre-trial” discovery. Interrogatories, Notices to Produce, Demands for Admissions and Depositions are a litigants means of obtaining proof in a case and providing the grounds for attempting to impeach an opposing party and/or witness at trial. Discovery can be a long and frustrating journey but it is the fuel that drives the engine of a litigation file. The image of a surprise witness stepping forward from the back of the courtroom, as in Perry Mason, is a widely held misconception. In real life, the failure to properly and extensively pursue discovery can lead to a surprise and a poor result, and is to be avoided. The attorney and client must work as a team in providing and obtaining discovery. The Rules of Court provide for, among other things, time limitations, limitations on the permissible scope of discovery and also provide for sanctions, sometimes severe, for the failure to properly respond.Discovery Devices
Interrogatories are a series of written questions, which must be answered fully, in writing, under oath, unless, of course, a valid objection exists to the question. The challenge when answering interrogatories is to craft a response which answers the question without offering too much information and when answering them, wording your questions so as to obtain a worthwhile response. Frequently, incomplete answers are given, but interrogatories cannot be taken lightly, as an untruthful answer can be used for impeachment purposes at trial.
Notices to Produce are an essential ingredient in preparing a case for trial. This tool provides the means of obtaining tangible information which the opposing party may attempt to use at trial.
Demands for Admissions are a series of statements which the opposing party may either admit or deny. The failure to object or deny will cause the statements to be deemed admitted. The thoughtful request here can often serve as the basis for a summary judgment motion.
Depositions require litigants to answer direct questions, under oath, prepared by opposing counsel. Because a deposition can provide vital information and the ability to assess the credibility of the party or witness, it is arguably the best discovery device for effective preparation for trial.
Pretrial discovery, although somewhat tedious, is important. To effectively prosecute or defend a claim, considerable attention must be paid to discovery, otherwise the image of a trial surprise could become a reality.
Darrell M. Felsenstein is an associate at WJ&L, LLP working in the Real Estate, Business & Corporate and Litigation areas.