Forget the courtroom drama; cases hinge on facts learned through 'discovery'

As a former criminal prosecutor, I know what most people imagine when they think of lawyers, trials and courtrooms. They envision the high-stakes drama of a tense cross-examination between a sharp attorney and a stubborn witness. It is a test of intellect and will, which has spawned many a legal novel and blockbuster film.

But in reality, much of what happens in a cross-examination at trial is all but a re-run, just like an old showing of "Perry Mason."

Ever hear the expression, "No lawyer worth his salt ever asks a question in court to which he doesn't know the answer"? It's only a cliché because it happens to be true. But how can this be? How can opposing counsel posing a question already know how the witness will answer?

It's called discovery.

Long before a trial ever starts, attorneys for both sides are privy to all the legal cards each is holding. This includes access to all evidence, documents, records and, yes, even the witnesses in a case. There are typically no surprises in court; no last-minute witnesses; no facts just now coming to light.

And if discovery is done properly, often the case never makes it to trial, as the facts uncovered during this process can create the outlines of a compromise settlement.

When it comes to the law, those who practice it do not like surprises. This is why in both civil and criminal litigation, this little-talked-about but immensely important legal process called discovery is so important.

Indeed, mining, trolling, cajoling and digging for all relevant information during discovery can make or break your civil litigation.

Your case is a house of cards without discovery

In my years of practice in construction, contract, business, administrative law and employment law, I have seen discovery work to the advantage on both sides in a civil case. By effectively using discovery, I've positioned defendants to pursue motions for summary judgement, which can lead to dismissal of the opponent's case or a negotiated settlement. Alternatively, I've used discovery to secure favorable settlements on behalf of plaintiffs by building a case and exposing the weaknesses of the opposing case.

If you want over-the-top courtroom drama, I recommend watching TV or reading a book. If you want

The best chance for success in your civil case, hire an attorney who will relentlessly and efficiently ferret out the evidence and put you in the best position to present or defend your case or negotiate a favorable settlement.

A century ago, there were complaints from prominent observers in the legal system about a "sporting theory of justice" that encouraged deception, concealment and surprise. By the middle of the 20th century, the state and federal court systems were beginning to enact reforms meant to eliminate "trial by surprise." These reforms have resulted in our modern system that gives both sides ideally equal access to all pertinent information about a case.

Probably the most powerful tool in discovery is the deposition. The witness must answer questions under oath, concerning the claims, defenses and evidence of the parties. This is a golden opportunity for the litigation attorney. A stenographer is present and everything is on the record. Cases can sometimes be virtually decided through the deposition.

Before an attorney gets anywhere near a deposition, however, he or she already must have secured through discovery all the documents and records that are vital to a successful deposition.

Modern discovery allows a party in litigation to direct written questions to another party (interrogatories) concerning all documentary evidence, potential witnesses and the bases of the other party's claims or defenses. Again, a good attorney knows just how to phrase these written questions so they can't be evaded. Otherwise, the process can be a waste of time.

Your emails? They're legal records

So what constitutes a document or record that might be subject to discovery in a civil case?

In today's world, documents are far more than paper records. Electronically stored information has assumed a major role. High-tech software systems are used to scan, search, categorize and organize electronically stored documents in order to make discovery searches easier. And yes, this can include emails.

Additionally, one side may request that the other admit certain propositions that are relevant to either side's claims or defenses as well as ask to have access to any premises at issue in the litigation.

Only after this crucial investigation is done is an attorney truly ready to go one on one with key witnesses in a case.

The very pressure of having to reveal the support, or lack of support for a case is sometimes enough to impel a party to come to the negotiating table.

Discovering a winning case

The bottom line is this: Determined, dogged and intelligent discovery is how we determine what is provable and not provable in civil litigation. Such proof is never self-evident. The facts and evidence must be discovered, then logically laid out for judge or jury to see.

A good lawyer will maximize his client's chances for success by effectively using the powerful process of discovery.

Discover how I can put this legal tool to work for you.