On television, lawsuits get started at the beginning of the episode and end up in a dramatic courtroom showdown before the hour is over. In the real world, lawsuits typically stretch over months (and years). The bulk of that time is devoted to the often laborious process called “discovery.”
In litigation, “discovery” refers both to the window of time in which the parties can extract information from each other, as well as to the information itself. During the discovery window, participants typically use one of three devices to gather potentially relevant information. Initially, parties send written discovery requests to each other, asking specific questions that need to be answered in writing, or calling for the “production” of documents. That first exchange is commonly followed by depositions where the parties or their representatives must answer questions under oath. (Since so few cases make it all the way to trial these days, the deposition is as close as many participants get to the Perry Mason style interrogations made famous by television.) Finally, either side to a lawsuit can send subpoenas to “third parties” — individuals or companies not themselves involved in the lawsuit — and require that they produce documents or provide deposition testimony just like a party to the litigation would.
In an electronic age, the volume of information that can be
unearthed in the discovery process can prove very helpful — and very overwhelming. The sheer cost in attorney hours to sift through mountains of emails and attachments often drives the parties toward a settlement even where one side or the other thinks it has a very strong case for trial. Part of the challenge for the good trial attorney is not only to locate the key “discovery” and build it into a compelling case, but also to manage the litigation process (and budget) to maximize the client’s opportunity for achieving a desired result.
Smoking guns and courtroom confessions aren’t commonplace, but a well managed discovery process sifts the wheat from the chaff and helps the parties focus on the key facts and documents that gave rise to a dispute in the first place. If you can avoid it, great. If not, we’ll get you through it.
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