We’ve all seen the movies where the dreamy attorney makes his powerful and poignant speech in front of a teary-eyed and mesmerized courtroom ending in a victorious win for David who was so unjustly wronged by Goliath.
Charming, isn’t it?
But very unrealistic.
Mostly because civil litigation cases rarely even reach an actual trial – let alone such an influential and moving one. The bulk of work that goes into any California civil litigation case is actually during the discovery phase.
‘Discovery’ is the pre-trial phase of litigation where the parties to the suit are required to provide requested evidence and are allowed to demand it themselves. This exchange of information serves a number of significant purposes:
- Gives both parties an equal chance to prepare for trial
- Helps all involved to identify and focus on the real items in dispute
- Paints a full picture for the judge and jury, giving them as much of the story as possible
- Promotes the possibility of a settlement by illuminating the strengths and weaknesses of each parties argument
Title 4 of the California Code is known as the Civil Discovery Act and provides detailed ground rules for how discovery preparation is to be conducted, what constitutes fair discovery, who can request what and when, and more. At 20 Chapters long, the Civil Discovery Act is comprehensive and lengthy, at best. So, while you are more than welcome to conduct your own discovery, it is generally not advisable.
Discovery comes in many forms, but can generally be categorized as follows:
Interrogatories are standard with almost any business litigation matter and are required by the courts to be answered timely and truthfully. Interrogatories are questionnaires that are sent from one party to the case to the other. The questions cover everything from a persons’ basic background information to detailed questions about witness accounts and evidence. The purpose of these questionnaires is to gather foundational information about the opposing party’s argument to determine how strong or weak it may be and try to assess the angle their argument might take.
Depositions can be compared to interviews.
Generally, they are performed in the presence of a court reporter either face-to-face or via a telephone conference call. The person being deposed will be asked a series of questions by opposing counsel and they are required to answer them under oath. Objections can be made by the party’s attorney – who is typically present – although objections during a deposition are a scaled-down version of those that can be made at trial. Generally, deposition questions are allowed, unless there is some serious concern about the way a question is posed. In other words, the question must be clear and not cause any confusion.
Request for Production
A critical component of discovery, requests for production covers a broad gamut as it refers to producing documents. In other words, similar to an interrogatory, parties to a suit may request that the opposing party produce copies of documents related to the case. This may include personal and business financial records, emails and letters, phone transcripts, sales receipts, contracts and more. Parties may even request the production of tangible items and real property. Each request will be specific and – again – you are given a strict time limit with which to respond. Chapter 14 of the Civil Discovery Act covers document production. Note here that this is why a Litigation Hold policy is so critical to your company or firm. If you cannot provide the requested items or information in a timely manner, it could mean serious repercussions from the courts.
Clearly we’ve only just scratched the surface here. What’s important to take away from this is that it is not the trial that you should be focused on, but the discovery leading up to it. Discovery is the longest and most complicated aspect of any civil litigation matter. This is the ‘meat and potatoes’ of your case and will ultimately determine the entire outcome.
If your company is facing the possibility of litigation, your first call should be to a respected and experienced business trial attorney. One who understands that you don’t WANT to go to trial if it can be avoided and one who understands that your company can save time and money with the right discovery strategy. Call The Law Offices of Tony T. Liu for a consultation and review of your pending case.