The commencement of a lawsuit creates an impediment to accessing certain facts. Some impediments can be overcome by diligent investigation, but others require the cooperation of the opposing side. Once a lawsuit is begun, the exchange of information between the parties is governed by rules of civil procedure. These rules allow the parties to obtain information from each other in several different ways.
The requirement of initial disclosure only applies in federal court. The premise behind the initial disclosure requirement is that the parties always seek certain facts — the documents supporting the claim and the names of witnesses with information about the claim. Rather than delay the exchange of information, the federal courts require the parties to make an initial disclosure of this type of information shortly after the lawsuit has begin.
A paralegal may be assigned to compile the information for an initial disclosure. This can be a time-consuming task. All documents should be categorized and indexed. The index serves as a record of which documents were actually produced in the event of a later dispute. The file material should be thoroughly reviewed for names of witnesses — the rule requires disclosure of the names of witnesses with information, not those that are favorable to your side or witnesses with information you think is important. In addition, witnesses known to the client but not listed in any document should be disclosed.
Interrogatories are written questions to the other parties in the lawsuit. The questions can address any subject matter relevant to the lawsuit. The other party must respond to interrogatories within thirty days by answering the questions or interposing objections to the questions. Objections are usually based on attorney-client privilege, the work product privilege, or the relevance of the requested information.
The proper use of interrogatories is an art form. Many legal practitioners attempt to use interrogatories to argue a case or to discover the legal theories of the opponent. Many of these questions are met with objections or vague and incomplete answers.
A better approach is to use interrogatories to obtain factual information. An interrogatory can assist you in identifying relevant witnesses and documents, and it can also ask for a summary of damages claims, or the date and time of specific events. This information can be used to develop an investigation strategy that expands on the basic information received in response to the interrogatories.
Many jurisdictions restrict the number of interrogatories. The interrogatories may be divided into separate sets, but the number is limited to fifty. This number includes question subparts, a distinction often overlooked by drafters of interrogatories. For example, a question asking for the name, address, and telephone number of a witness is really three questions. Because of these limitations, the astute drafter will limit interrogatory questions to information that is absolutely necessary.
How are disputes over discovery matters resolved?
The rules about what is discoverable and what is not are considerably less restrictive than the rules of evidence. A fact need not be admissible in evidence to be discoverable, and the courts tend to lean toward allowing the exchange of information rather than restricting it. For this reason, parties to a lawsuit often resolve discovery disputes through some sort of compromise to avoid involving the courts.
Demand for Documents
Documents in the possession or control of the opposing party may be requested. A party may also demand entry onto land for purposes of inspection. A typical assignment is for a paralegal to draft a request identifying the documents to be inspected and copied. The request should be specific and descriptive of the category of documents requested. The request should be as broad as possible without rendering the request meaningless. A request for “all documents supporting the plaintiff's claims for damages” is preferable to a request for “all documents related to plaintiff's claims.”
Once the requested documents are produced, the paralegal is responsible for reviewing, summarizing, and reporting on the documents produced. The process of digesting will vary with the document. Medical records may simply be incorporated into a medical chronology, quality control documents might be placed in a database designed to show results in a timeline, and documents from various sources might be indexed in relation to the legal or factual issues in the case. Where the documents in a case are voluminous, the paralegal may be responsible for creating and maintaining a numbering system that allows quick retrieval of specific documents.
Requests for Admission
Requests for admissions are used to obviate the need for proof of facts that the parties agree on. One party makes a factual statement that the other parties are required to admit or deny. An admitted fact need not be proven at trial. Requests for admissions are often used at the end of the discovery process.
Admissions are often used to lay the necessary evidentiary foundation for the introduction of documents or exhibits at trial. A paralegal assigned to draft requests for admission should review the entire file to identify facts that are necessary to the client's position. These facts should be stated as clearly and succinctly as possible. A request for admission should not contain editorial comment about the fact.
Once responses to requests for admissions are received, the paralegal must keep track of the facts that are admitted and the facts that are denied. Facts that are admitted can simply be presented to the court at trial and need not be a part of trial preparation. Facts that are denied must be proved and should be incorporated into pretrial preparation efforts.
A deposition is the process of orally questioning a witness in a case. The witness is placed under oath and the attorneys for all parties to the lawsuit are allowed to ask questions of the witness. Paralegals may not participate in the questioning, but they may be present to manage documents to be discussed at the deposition.
Paralegals are often charged with arranging the deposition. This process involves contacting the lawyer for the opposing parties to determine their availability. The availability of the witness must also be determined. A place for taking the deposition must be arranged — this may be a lawyer's conference room or another location. The paralegal will arrange for the presence of a court reporter to administer the oath and prepare a transcript of the proceedings.
When the deposition is concluded, the paralegal may be responsible for collecting and preserving the exhibits used in the deposition. A transcript must be ordered and paid for. The transcript should be reviewed and summarized for later use in trial preparation. Important passages should be marked for easy reference if the testimony of the witness changes at trial.
A deposition is sworn testimony under oath, just like in-court testimony. Since the deposition is a preview of the testimony the jury will hear, the deposition transcript must be carefully examined for potential discrepancies that might cause problems for the client's case. The process of summarizing or digesting a deposition is not merely creating an index, but placing the deposition testimony in the context of other trial preparation efforts.
Disclosure of Expert Opinions
The proof requirements in some cases include the presentation of expert testimony. When expert witnesses are involved, special discovery procedures apply. At the least, a party who intends to call an expert witness at trial must disclose the name of the witness, the qualifications of the witness, the factual basis for any opinions held by the witness, and the opinions of the expert. In many cases, this information is contained in a formal report from the witness. A report is required in federal cases.
A paralegal may be involved in locating an expert witness for a case. The client will often have suggestions about potential expert witnesses. In some cases, however, the paralegal must track down any expert without assistance from the client. This process may include contacting other paralegals for recommendations of experts in a specific field. The paralegal may also contact expert referral services if no other source is available.
The selection of an expert requires the involvement of the supervising attorney. An expert must meet the legal requirements of the case, fit with the tactical position the lawyer wishes to take in the case, and be cost-efficient. The paralegal should gather as much information about the expert as possible to assist in making the hiring decision. A current curriculum
Once the expert is hired, the paralegal must ensure that the expert receives sufficient information to form an opinion about the case. This usually involves copying all pleadings, discovery responses, depositions, and other factual materials from the file. The paralegal can safely send the expert all information received from the other parties and any documents from the paralegal's client that have been produced to the opposing parties. Undisclosed documents should be carefully reviewed for claims of privilege. The disclosure of documents to an expert is a potential waiver of any privilege with respect to that document. All questionable documents should be reviewed with the supervising attorney before disclosure.
Once the opinions of the expert are received, the paralegal should prepare a draft disclosure of those opinions. In all cases, the opposing parties are entitled to a disclosure of the opinions of an expert witness who will be called at trial. Of course, the supervising attorney may decide that the expert will not be called at trial, making any disclosure unnecessary.
The required contents of a disclosure of expert opinion are often governed by court rule or interpretations contained in published court opinions. A disclosure of expert opinion that does not include these items can cause serious problems for the progress of a case.
On receipt of a disclosure of expert witness opinions from an opposing party, the paralegal must investigate the expert thoroughly. The expert's background and qualifications must be checked, including membership in trade organizations and employment history. The materials reviewed by the expert should be verified. In general, a paralegal is entitled to review any materials the expert relied on in forming an opinion. The opinions of the expert should be checked carefully. Expert opinions that represent a substantial deviation from the accepted conclusions in the field may be subject to challenge. At a minimum, the expert's opinion should be reviewed by the client's own expert. Regular summaries of these efforts should be provided to the client and the supervising attorney.