The Discovery Stage – Gathering the Evidence

The Discovery stage of lawsuit begins after each party has filed court papers making allegations, imposing denials and asserting defenses. 

In the Discovery stage, each contestant is entitled to extract information from the other using legal referred to as interrogatories, document demands, requests for admissions, depositions, inspections of lands and objects and mental and physical examinations of persons. Not all methods are used in every lawsuit – the lawyers will customize a Discovery plan using these tools to gather relevant information to be used at trial. 

Interrogatories are a list of questions submitted to the adversary who must provide answers.  Typical interrogatories ask for the names of people who are witnesses to the events that form the basis of the lawsuit, a summary of the information known by each such person and whether the adversary has obtained written statements from witnesses.  Interrogatories ask the adversary to itemize and quantify the amount of money the adversary claims is owed and whether there are any other persons or businesses who might also be legally responsible for the harm caused.  Interrogatories ask whether the adversary has hired any experts to render “opinion testimony” at trial, and if so, whether any hired experts have issued a report that summarizes the expert’s opinion.  Experts are discussed in more detail in another article in this series.  Interrogatories are a critical part of the Discovery process for each party to the lawsuit and are virtually always included in each party’s Discovery plan.

Document demands are also critical to each party in a lawsuit.  By demanding that the adversary produce a copy of every letter, email, contract, legal instrument, bank record, receipt, cancelled check and any other writing contained on paper or on a computer, each party gets objective evidence that often clarifies or contradicts an adversary’s verbal version of the events that form the basis fo the lawsuit. In lawsuits involving business disputes, the entire series of events often can be recreated by meticulously piecing together emails, contracts and various other documents. 

Requests for admissions are used to find out those important facts that the adversary does not dispute.  This Discovery tool is used to allow the trial to flow smoothly through those bits of information that are undisputed so that the trial attorneys can concentrate on presenting evidence at trial of those facts that are in dispute.  An adversary’s response to a request for admission can eliminate the need for one or more witnesses at trial since, as a result of the admission, the testimony of the witness is not needed to prove a particular fact. 

Interrogatories, document demands and requests for admission are often referred to as “paper Discovery.”  Submitting these to an adversary, and responding to these submitted by an adversary is all done on paper.  These three tools are usually the first Discovery methods employed by the parties.

After paper Discovery is completed, the parties decide whether to conduct depositions of the persons who are witnesses to the events that took place.  In a deposition, the attorneys for each side meet in a conference room in one of their law offices along with a stenographer and the witness who is to be “deposed.” That witness takes an oath to tell the truth, and then each attorney takes a turn asking the witness questions. The questions typically start with a focus on the witness’s background (where they are from, where they work, where they went to school) and then moves on to questions about the facts of the case itself.  Everything proceeds verbally and the stenographer types every word that is said. Following the deposition, the stenographer prepares a transcript that puts in writing everything that was said.

The purpose of a deposition is to nail down the testimony of the witness.  This assists the lawyers in preparing for trial as the lawyers pretty much know what testimony the witness will give at trial.  It also allows the lawyers to challenge the witness’s honesty if the witness testifies differently in court than in the deposition.  (“You just testified that the light was green, but in your deposition you testified that the light was red.  Are you lying now or were you lying in your deposition?”)

If the lawsuit is a dispute about lands, buildings or objects, each party will be entitled to have access to the lands, buildings or objects to inspect and gather data that may be related to the claim. If the lawsuit is about injuries to a person’s physical or mental health, the adversary will be allowed a medical examination of the injured person. 

The rules followed by the New Jersey state courts fix a deadline for the completion of the Discovery stage.  The length of the Discovery stage ranges from 150 days to 450 days depending on the type of lawsuit. 

During the Discovery stage, the parties may be ordered to participate in Mediation.  After the Discovery stage ends, the parties may be required to participate in Non-Binding Arbitration.  If the matter does not resolve between and among the parties, after the completion of Non-Binding Arbitration, the court schedules the matter for Trial.

Look for other blog posts on the topics of How to Start a Lawsuit, Expert Witnesses, Mediation, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.