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In this lesson, you will learn how to prepare for discovery and things to look for in your jurisdiction. You will also learn how to use depositions and how to draft interrogatories, a request for production, and a request for admissions.
Discovery is successful when the evidence discovered supports a claim or defense or counterclaim, ideally eliminating the need for trial through summary judgment.
Pre-trial measures are successful when a court order limits the matters to be tried favorably.
Plaintiff’s strategy at the Discovery stage
- elicits facts supporting elements of the claim
- elicit facts opposing elements of affirmative defenses
- elicit facts opposing elements of any counterclaims
A plaintiff should successfully ensure all of these factors.
Defendant’s strategy at the Discovery stage
- elicit facts opposing the plaintiff’s claims
- elicit facts supporting affirmative defenses
- elicit facts supporting any counterclaims
A defendant should successfully ensure at least one of these factors.
Your Strategy
Take a moment to think about what YOUR strategy should be at the Discovery stage.
- What facts are necessary to support the plaintiff’s claims?
- What facts are necessary to support affirmative defenses?
- What facts are necessary to support any counterclaims?
You should answer these questions no matter whether you’re a plaintiff or defendant in the case.
Transcript
To prepare for discovery, refer to local rules of the court where your case has been filed and the rules of civil procedure. Determine appeal requirements, including items you need to file with the court, the number of requests that can be made, time limitations, and attachments that must be included with the request or notice. You should also determine the discovery instruments to use and review samples of the approach you want to take.
When drafting interrogatories, determine the question to ask then draft the request.
Identify yourself in the first paragraph and tailor definitions to the interrogatories you\’re asking. Most jurisdictions limit the number of interrogatories, so choose strategically. Stay within that number limit. Number the interrogatories consecutively and keep them simple. No compound questions, separate out each interrogatory.
Finally, don\’t combine interrogatories with a request for admissions They differ and require different types of responses.
With the request for production, determine the documents you need for what purpose and who might have those documents.
A plaintiff might ask, what documents do I need to prove a claim or to attack a counter claim? They would then proceed to list those documents. Conversely, the defendant might seek documents to attack the claim or to support a counter claim and affirmative defenses.
Draft the request and send to the opposing party or the party\’s attorney.
For the request for admissions, determine what you need to ask. In writing, identify the party requesting the admissions and the responder. Number each request consecutively and separate out each.
Assure that each request is full and complete, narrowly construe each request. That is, make it very clear what you\’re asking. Serv the request for admissions.
A discovery document consists of three sections. The first section defines terms used in the request. Instructions provide guidance on how to respond to the request. Then there\’s the actual request.
Written discovery requests differ from each other in fundamental ways, including the way each request is posited. Adhere to the requirements for each request.
There are some basic similarities between depositions and written discovery. They\’re all used to gather evidence. The responder can object to questions. The responder faces consequences for not answering. But unlike written discovery, depositions have few limitations on the number of questions asked, parties talk to people in person, and notices and subpoenas are required to be filed. In depositions, parties can immediately stop upon an objection by the opposing party, and the judge can be called.
For depositions, determine the answers you need. Witnesses, and order of witnesses. Give the opposition three possible dates for the deposition.
Determine the location and hire a court reporter. Once the data is set, file a notice of deposition, a notice of serving subpoena, and a subpoena or subpoena deuce\’s tikum with the Courtroom5 notices and subpoenas as appropriate to witnesses and or their council. Prepare exhibits and questions.
On the day of the deposition, arrive at the location early and allow the court reporter to set up. Organize important documents and questions for easy access. The court reporter will swear in each witness and number exhibits.
Introduce yourself and tell the witness what to expect.
Begin with questions about the witness, then move on to the meat of the deposition.
Quickly move to another subject when you get the answer you want. If a party objects to a question, the judge may be called to hear the objection.
Allow for breaks during the session and review your outline during the breaks.
A subpoena is an order to a person or company to appear in court to testify. A subpoena deuceus Ticom, also requires the witness to produce certain documents. The purpose of the subpoena and deposition is to gather information from parties that might not be obtainable by other means. After you draft the subpoena, have the court clerk formally issue it. Make a copy for the witness and keep an original, serve the subpoena on the witness.