Types of Pre-Trial Discovery
Discovery refers the process of obtaining pertinent information through the exchange of documents and testimony prior to trial. Discovery allows each party to learn about and analyze the facts of the case, so that the matter may be contested fairly.
While many things may be discoverable, courts regularly enforce the Rules of Civil Procedure to protect irrelevant and “privileged” information from being discovered, ensure that each party is given a full and fair opportunity to discover evidence, and promote an efficient and effective judicial process.
Discovery serves a number of functions by allowing parties to fully disclose facts and information (as well as the existence and location of such facts), secure evidence for use at trial, clarify key issues, and ensure adequate trial preparation. Most pre-trial discovery is either conducted in writing — such as through the use of interrogatories — or through oral interviews, known as depositions.
Interrogatories are sets of formal written questions that are served onto a party during the course of discovery. Interrogatories are often the first step in the discovery process, and are used to determine facts, obtain evidence, and secure information that will support a party's legal claim. Interrogatories usually set a platform upon which attorneys will craft deposition questions and develop a strategy to prepare the case for trial.
When answering interrogatories, a party must be truthful, because the response is given under oath. The Rules of Civil Procedure govern how interrogatories are to be written and served, and establishes limits on the number of questions that can be included. The rules also establish who may be served with interrogatories, as well as who may answer.
Depositions are informal hearings outside of court where attorneys take sworn testimony from witnesses and related parties about the facts of a particular case. The process of taking depositions serves an important function, as with any discovery proceeding, in allowing parties to obtain information in preparation for trial. The spontaneity and depth of a deponent's answers gives the attorneys a fair preview of the evidence, so that a "level playing field" is achieved and surprise is avoided at time of trial.
Another benefit of depositions is to preserve and analyze a witness's recollections while they are still fresh. In most cases, many months (and sometimes years) may elapse between the disputed event and the eventual trial. With that, memories of a specific event can become clouded as time passes, or they can fade away altogether. A deposition serves to give a witness the opportunity to verify what he or she saw or remembers, and to make a record of such recollections.
In the event a witness passes away or is otherwise unavailable for trial, his or her deposition testimony may be read into the record. Also, depositions may be videotaped in anticipation of the witness not being available to testify at trial.
In most cases, after a number of witnesses have been deposed and the attorneys have analyzed their responses, the parties will have sufficient information to reasonably predict the outcome of a prospective trial. After which, the parties may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional litigation costs.
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