Pre-Trial Process
Discovery
In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions.
Under the law of the United States, civil discovery is wide-ranging and can involve any material which is relevant to the case excepting information which is privileged, information which is the work product of the opposing party, or certain kinds of expert opinions. Electronic discovery or "e-discovery" is used when the material is stored on electronic media. In practice, most civil cases in the United States are settled after discovery. After discovery, both sides usually are in agreement about the strength of each side's case and this produces a settlement which eliminates the expense and risks of a trial.
Discovery in the United States is unique compared to other common law countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure guide discovery in the US federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery."
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
The most substantial rule, which guides the discovery process.
Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under ¶ 1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.
However, there are limits to discovery. ¶ 2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests, if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in ¶ 3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e.g., a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. ¶ 4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. ¶ 5 generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient, etc.), and requires the production of a "privilege log" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.
Subdivision (c) provides for protective orders.
Subdivision (d) specifies the times at which parties may employ the various methods of discovery.
Subdivision (e) provides for supplementation, which requires a person to correct any submitted information as it is necessary. For example, if you submit your medical records, and then your doctor calls you to say a crucial medical test just came in, you may be required to send that new report to the other party without being specifically requested to do so. Subdivision (f) provides a special meeting between the parties to organize their discovery process; this is a required step. Subdivision (g) is the good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party.
Deposition
In law, a deposition is evidence given under oath and recorded for use in court at a later date. In many countries depositions are given in courtrooms, but in the United States they are given outside a courtroom in certain well-defined circumstances. In the U.S. it is a part of the discovery process in which litigants obtain information from each other in preparation for trial. Some jurisdictions recognize an affidavit as a form of deposition.
In American judicial proceedings in federal court, the procedure for taking depositions is set forth in Rule 30 of the Federal Rules of Civil Procedure and corresponding provisions in states which have adopted the Federal Rules. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpoena must be served on him/her if he/she is reluctant to testify. The person to be deposed (questioned), known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. A court reporter, also known as a stenographic reporter (sometimes denoted "CSR" for Certified Stenographic Reporter) is present and begins the proceedings by administering the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. Many CSRs nowadays also make an audio or video recording.
Attorneys for the non-deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning of the deponent (this questioning is referred to as "direct examination" or "direct" for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.
During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: to assert a privilege and to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. All other objections, in particular those involving the rules of evidence, are generally preserved until trial. They need not be made at the deposition.
The chief value of a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence so that a "level playing field" is achieved and surprise (traditionally regarded as an unfair tactic) is avoided at time of trial. Another benefit of deposition is to preserve a witness's recollection while it is still fresh, though the trial may still be some time later. In the event a witness is unavailable for trial, his deposition testimony may be read before the jury and made part of the record in the case, with the same legal force as live testimony. In some states, depositions can be offered into evidence even if the witness is available. In any case, one party can use a deposition to impeach (or contradict) the witness's testimony in open court.
Some depositions are videotaped, in anticipation of the unavailability of a witness at trial, so that if necessary the videotape may be played for judge and jury.
Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional costs of litigation. Accordingly, while most depositions are not videotaped, it may be of value for parties to make a positive impression on the opposing side's lawyers with respect to affect and appearance because these are telling factors as to how that person will present in front of a jury.
Interoggatories
In law, interrogatories (also known as Requests for Further Information) are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. The vast majority of such questions are to find background information about the litigants that is not specific to each case, so it is common to use pre-printed forms containing standard questions that are generally relevant to the type of case at hand, called form interrogatories. These may even be determined by statute or court rules.
In civil cases, the issues to be decided can potentially be more complex than in criminal cases. For example if a person is charged with speeding, in a hypothetical case the prosecution have to prove that the person was the driver of the motor vehicle and that it was being driven in excess of the proper speed without any lawful excuse.
Example
One common civil claim brought is compensation arising out of a road accident. In reality a road traffic accident is rarely complicated. However to demonstrate the concept, this section assumes there is a car accident in a Common Law jurisdiction that does use complicated concepts
In this hypothetical claim the injured person would usually rely on the fact that the driver to be held responsible has (in the injured person's opinion) breached the tort of negligence. If they did that, the law requires the injured person to show that the driver owed them a duty of care and breached it. In practical reality, the courts accept that drivers owe other road users and pedestrians a duty of care, and the case would come down to whether the driver drove in accordance with the standard of a reasonable driver, and whether the injured person's injuries are a foreseeable consequence of the driving.
However, the manner in which the injured person could seek to prove those things is quite variable. In the simplest case the injured person could allege that the driver went too fast, failed to control the car properly or failed to keep lookout. The driver may have a defence to those allegations, perhaps if the accident occurred at low speed, and was unavoidable (maybe due to some third party intervention). The injured person may, however, argue that the driver was still responsible (perhaps the driver should have used the horn of the vehicle to alert the third party), or there may be other allegations.
The pleadings of the parties are intended to let the other parties know what each side will seek to prove at trial, and what case they have to answer.
However, in a complicated case, the pleadings may not give enough information. In the above example, the pleading may allege:
The driver drove negligently. The details of the negligence are,
failing to drive carefully
driving too fast
failing to make proper use of the car's controls
failing to take reasonable steps to alert the third party so as to avoid the accident.
The driver is told the broad outlines of the case, but still does not know what allegation is being made regarding alerting the third party.
The driver can therefore issue an interrogatory to require the injured party to state exactly what it is that the driver did not do and should have done.
In the hypothetical example, this would assist the litigation process, because for example, if the injured person states that the driver ought to have alerted the third party, the driver may be aware that the law imposes no such duty, and can issue a motion, (or application) to the court to have that part of the claim dismissed.
