Understanding Discovery

  • By:Rex Daines
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Have you ever wondered how attorneys come up with those surprise questions at trial that make the witness cry on the witness stand? You know, like the way they do it in movies: Mr. Attorney suddenly turns on the sweet little old lady witness who has been giving the most damming evidence against his client until now, and says in a deep, booming voice, “isn’t it true, Mrs. Witness, that you didn’t see the light at all…because you are legally blind!” and everyone gasps in surprise and the witness crumples, dissolving into tears. Or, where plaintiff is losing her case, and her attorney suddenly says, “I call my next witness, Mr. Whosit!” and the courtroom doors swing open and to everyone’s astonishment, Mr. Whosit, who everyone thought was long dead, comes swinging in and takes the witness stand. How do attorneys work all those astonishing surprises into a litigation?

Well, they don’t.

Civil Discovery.

While it makes for good television, in real life, civil cases (like personal injury, car accident cases, toxic torts, breach of contract cases etc.) have a set of legal procedures, called “discovery,” that are designed to prevent surprise at trial.

Why?

Because our legal system is designed to foster fairness in litigation and promote early settlement. The discovery procedures allow each side to find out as much as possible before trial, of the strengths and weaknesses of the other side’s case, and his own.

What’s the point of that?

Well, the more you know about how strong or weak your case is, and how strong or weak the other side’s case is, the more likely both sides will be willing to settle their differences instead of going to trial. Trial is time-consuming, emotionally exhausting, and costly. If both sides have a realistic view of their case and the other side’s, they can very often reach a settlement that is fair to both sides without having to resort to trying their case before a judge and jury.

Written and Oral Discovery. 

Civil discovery is a thorny, sometimes burdensome, but very important part of litigation. Briefly, discovery allows you to obtain information about the other side’s case (including who they intend to call as witnesses at trial) in both written and oral form.

Written discovery generally consists of written questions (called “interrogatories”) that the other side must answer in writing, under oath, and document demands (“requests for production of documents”). A document demand requires the opposing party to produce documents to support his or her case.

Oral discovery generally refers to depositions. Depositions, while not as formal as in-courtroom testimony, are nevertheless sworn testimony subject to punishment for perjury. Depositions allow each party to interrogate the plaintiff or defendant, witnesses, and expert witnesses, under oath, before trial. These sessions are recorded and transcribed by a court reporter and can often be videotaped as well.

We Are Here To Help You.

If you are a witness, have been sued, or are thinking of bringing a lawsuit, you will be required to participate in discovery. We can help you through it. We have offices in Salem, Medford, Bend, Portland, Eugene, Albany, Grants Pass, Klamath Falls, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. To set up an appointment, call us toll free at: 1-800-682.9568.

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