“Discovery” is the part of the legal process where each party gathers information and documentation from the other party. It ideally occurs well before the trial of the case. Discovery gives each litigant a look at the evidence that can be used by the other side. The process prevents the trial from being delayed by the inspection and review of evidence for the first time. It aids each party in assessing the strengths and weaknesses of each party’s case. It may make the difference between whether the case is settled or goes to trial. Here are the three basic types of discovery and then the principles to guide you through the process.
Interrogatories are written questions that must be answered in writing under oath. They cover a wide range of topics. You can be asked for general information about yourself such as your background, education and family history. You may be required to answer questions about your work history and finances. Many times the interrogatories ask you for the legal principles upon which your case is based. It is common to be asked for a list of your potential witnesses with a summary of their testimony. You may be asked particular questions such as if you have hired a detective or whether you have any audio or video evidence. There are also interrogatories that are tied to the particular facts of your case. If you are asking, for example, for primary custody of the children, your spouse may ask for you to state why you believe primary custody for you is in the best interest of the children. The possible interrogatories are many and varied.
Notice to Produce Documents
Each side can require the other to produce documents that are related to the case. Financial documents are the most frequently requested documents. They include tax returns, wage and salary information, banking statements and charge account records. In many cases, telephone and test message information is relevant to the issues at hand. Audio and video evidence is included in this category. It is not unusual to ask for the hard drive from a computer or perhaps the computer itself. As you might expect, social media can provide a wealth of information to request. A listing of Facebook friends and posts as well as Twitter follows/followers and tweets can be critical in your case.
A deposition is oral testimony given by a party or a witness. The attorney’s questions and the answers to the questions are taken down by a court reporter. It is official testimony as if it were given in front of a judge or jury. A deposition is a crucial part of the case. Answers to deposition questions that are not the same as the answers given at trial can hurt the credibility of the party or witness giving the answers. The answers establish the facts and you don’t want to be presenting two sets of facts in court. A deposition will also give an indication of a person’s demeanor. A person may become rattled or lose his or her temper during questioning at the deposition. It may become clear during the deposition that someone may not be a good witness and the other side may try to exploit any weaknesses in what that person says and how he or she says it. This can be very important to the ultimate result of the case.
Tips for Successful Discovery
- When you are asked to produce documents, get them to your attorney in an organized
manner. This will save your attorney time and save you legal fees. Finding the requested document can be a process that consumes a lot of time, but it is required. Do not cut corners when it comes to supplying the documents. You are not the only source for many documents that are being requested. If it appears that you are not supplying documents that are obtained elsewhere, you may seem to be hiding something.
- Don’t just provide documents—review them first. Let your attorney know if there is
anything in the documents that might strengthen or weaken your case. Your attorney does not need any surprises. In one case, a husband gave a pile of charge card statement to his counsel without reviewing them. Neither he nor his attorney noticed his expenditures to Godiva Chocolates and Victoria’s Secret. At trial, his wife’s attorney questioned the husband about the purchases. He stated that none of them were for his wife. The wife’s attorney asked him nothing further leaving the jury with the distinct impression that he was having an affair even though there was no direct proof.
- Give your attorney complete answers to the interrogatories. He will place them in the
proper format for your response. It is never a problem to supply your counsel with too much information. While you may end up giving him more than was requested, what you do provide may contain a simple fact or incident that might change the entire case.
- Prepare for your deposition as if it were a final exam. Your attorney should be able to
provide you with the questions that he will ask you. He should also be able to give you questions that he anticipates the other side will be asking. You should have a full rehearsal for as long as it takes to become comfortable with all of the questions and all of the answers.
The discovery process can make or break your case. It is cumbersome to go through this phase, but cases are often won or lost at this stage of the proceedings. Devote the time and effort to whatever it takes to put yourself in a position to use this information to your advantage.
To speak with experienced Woodstock family attorneys, contact Michael R. Stetler at (815) 529-4554.