DEALING WITH PRETRIAL ‘DISCOVERY’

Prior to 1954, lawsuits generally were commenced, and then went to trial some months later, without a lot of interaction between the attorneys. The problem with this format is that it led to “trial by ambush.” That is, the attorneys on both sides of the case really didn’t know what the opposing side was going to do in terms of strategy and admitting documents into evidence at trial.

In 1954, the U.S. Supreme Court amended the civil rules of procedure quite dramatically, by establishing four types of pretrial discovery procedures. Soon, virtually every state adopted similar rules, including the State of Idaho, which rules are applied in Kootenai County and other counties in the state.

Now, the attorneys on each side of the case can send the opposing side four types of discovery requests. These are:

  1. Interrogatories.
  1. Requests for Production.
  1. Requests for Admission
  1. Depositions

Interrogatories – these are basically written questions asking the opposing party to respond in writing to questions about the relevant issues in the case. For example, in a personal case, the insurance company lawyer might ask for a list of all doctors that the Plaintiff has seen during the past 10 years. The insurance company’s attorney would then use that information to subpoena all those medical records.

Requests for Production – these are requests in which the attorney requests the opposing party produce documents, records, photos, audio recordings, etc. that are relevant to the case. For example, in a breach of contract lawsuit, one of the attorneys may request a copy of all letters, emails and text messages sent or received by the opposing party dealing with the contract at issue.

Requests for Admission – Here, the party propounding the request states a factual statement and requests that the opposing party either admit or deny that statement. For example, in a construction defect lawsuit, the owner of the property might send the builder a request that says: “Admit that you used the incorrect type of concrete for the foundation of the building.”  If the receiving party denies the statement, and it is later proven at trial to be true, then the party propounding the discovey request will be awarded all of the attorney fees and expenses incurred to prove the proposition at trial. This attorney fee award takes place even if that party loses the lawsuit itself!

Depositions. These are oral question and answer sessions that take place in the presence of a licensed court reporter, and are subject to the penalty of perjury for false answer. The court reporter then transcribes the testimony into a written volume that can be used at trial. Depositions can be taken of the parties in the case as well as witnesses.

The use of these modern discovery rules has not only done away with “trial by ambush,” but has also increased the likelihood that cases will settle before trial because each side will know exactly what the other side possesses in the form of evidence and testimony to be used at trial.